UNIVERSITY 

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LIBRARY 


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LEGAL  APHORISMS 


BY 


JOHN  WESLEY  FRIEND, 

"f 

Newport  News,  Virginia,  Bar.  • 


RICHMOND.  VIRGINIA  : 
Whittkt  Sc  Shepperson,  Printers. 


Entered  according  to  the  act  of  Congress,  in  the  year  1908,  by  John 
WiSLEY  Friend,  in  the  office  of  the  Librarian  of  Congress,  at  Wash- 
ington, D.  C. 

r 


TO    THE 

HONORABLE  JAMES  KEITH, 

Who  carries  the  benediction  of  thirty-eight  consecu- 
tive YEARS  OF  HONORABLE  AND  USEFUL  SERVICE  ON  THE 

Bench,  and  who  now  in  the  ripe  maturity  of 
his  ability  and  learning,  is  president  of 
the  Supreme  Court  of  Appeals  of 
Virginia,  his  native  State, 

this    BOOK    is    respect 
FULLY  DEDICATED. 


76770'! 


LEGAL  APHORISMS. 


Abatement. 


P](>a  ill  abatomeiit,  ineliuling  plea  to  tho  jurisdiction.  If 
the  defendant  fail  to  appear  at  the  return  day  of  the  writ 
(the  declaration  or  hill  being  properly  filed)  a  conditional 
judgment  or  decree  nisi  goes  against  him,  and  his  right 
thereafter  to  plead  in  abatement  ceases,  as  under  V.  C. 
§  32f)0  in  its  original  form ;  but  if  he  enters  his  appearance 
at  the  rt^nrn  day  of  the  writ,  without  more,  he  thereby  pro- 
longs his  right  to  plead  in  abatement  until  the  next  rules. 
This  must  follow,  since  the  rule  to  plead  fixes  the  next  rule- 
day  as  the  time  (V.  C.  §  3239)  and  if,  at  the  next  rules,  he 
pleads  (whether  in  abatement  or  in  bar)  he  is  not  in  default; 
and  no  ojffice  judgment,  or  decree  pro  confesso  can  be  taken 
against  him  under  §  3284,  until  he  is  in  default.  6  Va. 
L.  Tveg.  484.     The  order  at  rules  may  be  as  follows: 

This  day  came  the  parties,  l)y  their  attorneys,  and  the 
plaintiff,  by  his  attorney,  filed  his  declaration  (or  bill), 
and  tho  defendant  having  appeared  and  entered  his  appear- 
ance, and  having  failed  to  plead,  answer  or  demur,  a  day 
is  thereupon  given  the  defendants  until  the  next  rules  to 
plead  to  the  said  declaration  (or  bill)  and  the  same  day  is 
given  to  the  plaintiff  there,  etc. 

A  pirn  in  ahntemcnt  is  'disfinguishrd  from  a  pica  in  har 
by  its  conclusion,  and  must  conclude  regularly.  2  IT.  A:  ^f. 
308:  13  N.  2150:  5  :^^ass.  280;  0  TTow.  (U.  S.)  213.     For 


6  Legal    Aphorisms. 

forms  of  conclusions  of  the  several  kinds  of  pleas  in  abate- 
ment, see  4  Minor  1238. 

Matter  in  abatement  is  either  intrinsic  or  extrinsic.     In- 
trinsic matter  is  where  it  appears  on  the  face  of  the  writ,  or 
is  shown  by  the  pleadings  on  the  part  of  the  plaintiff.     For 
matter  so  appearing,  the  court  will,  ex-offjcio,  abate  the  writ 
or  suit,  as  the  nature  of  the  matter  mav  require.      And  ifc 
will  do  this  at  any  stage  of  the  suit  at  which  the  matter  is 
•  brought  to  the  attention  of  the  court  in  any  way,  even  after 
verdict  on  the  general  issue,  unless  cured  by  the  pleadings 
or   verdict.     Extrinsic    matter    of    abatement    can    only  be 
shown  by  plea  in  al)atement,  or  suggestion  to  the  court  l)y 
one  of  the  parties,  or  an  amicus  curiae ;  and  the  party  mak- 
ing such  suggestion,  makes  it  not  as  a  party,  but  as  amicus 
curiae.     Of  these  extrinsic  matters  of  abatement,  some  only 
make  the  suit  abateable;  and  they  must  be  pleaded  in  due 
time,  or  they  cannot  be  afterwards  available  to  the  party  in 
anv  wav.     Such  extrinsic  matters  making-  the  suit  abateable 
must,  if  they  exist  before  the  suing  out  of  the  writ,  and  before 
the  proper  time  for  pleading  in  abatement,  be  pleaded  at 
that  time.     If  they  arise  afterwards,  they  must  be  promptly 
pleaded  j)iiis  darrein  continuarice ,  or  the  party  loses  the  bene- 
£t  of  the  plea  forever.     Other  extrinsic  matters  of  abatement 
are  such  as  abate  the  suit  de  facto,  and  these,  even  after  the 
defendant  has  lost  the  right  of  pleading  them,  will   abate 
the  suit  if  they  be  made  known  to  the  court  at  any  stage  of 
the  cause,  and  in  any  way;  and  if  not  made  known  to  the 
court,  and  judgment  be  given  eitjier  for  plaintiff  or  defend- 
ant, such  matter  may  be  assigned  upon  a  writ  of  error,  as 
error  in  fact,  for  whjcli  the  judgment  will  be  reversed.     And 


Legal   Aphokisms.  7 

finally,  the  same  matter  may  in  some  cases  be  pleaded  in 
abatement  or  in  bar  at  the  election  of  the  defendent.  Green, 
J.  in  Garrard  v.  Henry,  6  Rand.  117.  And  see,  also  opin- 
ions of  eTudges  Tncker  and  Roane  in  Mantz  v.  Henley,  2  11. 
&  M.  812,  313.    1  Rob.  (old)  Pr.  162. 

PJea  in  Ahatemeni  of  an  Attachment. — In  Mantz  v. 
Henley,  2  H.  &  ^L  308,  the  defendant  pleaded  that  the 
plaintiff  ought  not  to  have  or  maintain  his  action  and  attach- 
ment against  him  because,  &c. ;  concluding  with  a  verification 
and  a  prayer  of  judgment  whether  ''the  said  plaintiff  ought 
to  have  and  maintain  his  attachment  and  action  aforesaid  for 
his  debt  aforesaid,  &c."  To  this  plea  the  plaintiff  demurred. 
Roane,  J.  said  the  plea  w^as  defective  in  point  of  form,  in 
not  having  a  proper  conclusion.  It  ought  to  have  demanded 
that  the  attachment  be  quashed.  And  being  a  plea  in  abate- 
ment, the  defect  was  fatal  on  general  demurrer.  He  further 
says  that  the  plea  in  question  is  substantially  a  plea  in 
abatement,  though  in  point  of  form  it  approaches  very  nearly 
to  a  plea  in  bar.  A  plea  in  abatement  is  one  ''which  shows 
cause  to  the  court  why  the  defendant  should  not  be  impleaded, 
or,  if  impleaded,  not  in  the  manner  and  form  he  now  is. 
1  Bac.  Abr.  1.  This  definition  determines  the  present  to  be 
substantially  a  plea  in  abatement. 

The  pendency  of  another  action  against  or  by  the  same 
parties,  for  the  same  cause,  may  be  pleaded  in  abatement; 
and  the  plaintiff,  after  such  a  plea,  cannot  avoid  its  effect 
by  discontinuing  the  first  action 


8  Legal   Aphoeisms. 

which  was  pending  when  the  plea  was  filed.  4  Minor  760. 
The  object  of  the  rule  is  to  prevent  a  party  from  being  un- 
necessarily vexed  with  two  snits  when  one  would  suflice  to 
afford  him  the  redress  to  which  he  is  entitled.  Broom's  Leg. 
Max.  347;  2  Strob.  1216;  10  Bing.  322.  And  the  modern 
practice  is  to  look  into  each  case,  and  to  determine  as  a 
matter  of  fact  whether  the  second  suit  was  unnecessary  or  not. 
45  Mo.  294;  88  Va.  549. 

A  simple  and  regular  course  is  to  have,  at  the  foot  of 
the  plea,  a  brief  affidavit  signed  by  the  defendant  and  cer- 
tified by  a  justice  (or  notary  public)  as  follows:  C.  D.,  the 
defendant  in  the  cause  above  mentioned,  maketh  oath  and 
saith  that  the  plea  above  written  is  true  in  substance  and 

in  fact. 

CD. 

Sworn  to  this day  of before  me,  a 

Justice  of  the  Peace  for  the  County  of 

E.  F. 
5  Rob.  Pr.  118. 

A  faulty  plea  to  the  jurisdiction  was  gotten  rid  of  by 
motion  to  strike  out  in  95  Va.  486. 

Pleas  in  abatement  in  general,  other  than  pleas  to  the 
jurisdiction  of  the  court,  may  be  pleaded  by  attorney,  be- 
cause the  jurisdiction  of  the  court  is  not  thereby  dis^turb-vl. 
1  Chitty.  PI.  (7  Am.  Ed.)  490. 

A  Plea  in  Abatement  by  a  Corp\oration. — Mr.  Robinson 
in  his  practice,  Vol.  5,  p.  23,  gives  the  form  for  a  plea  by 
attorney  and  cites  Chitty's  Pleading,  but  the  West  Virginia 
court  in  the  case  of  Quarrier  Tr.  v.  Peabody  Ins.  Co.,  10  W. 


Leoal    Apiionis>rs.  9 

Va.  HOT,  has  held  that  the  plea  must  be  made  hy  the  presi- 
dent <»f  the  eunijjaiiy  and  Jiot  by  attorney,  and  that  the  plea 

shoidd  eommence  and  conclude, Company  by 

its  president.     As  bearing  on  the  question,  see 

!);}  Va.  274;  102  Va.  -483. 

Defense  to  action  prematurely  hrought,  how  made. — ]\Ir. 
Chitty  (1  Chitty's  PL  44)5)  says,  that  where  a  suit  is  pre- 
maturely brought,  it  is  ground  of  demurrer  or  nonsuit.  This 
appears  to  me  to  be  the  true  rule.  Sutherland,  J.,  3  Wend. 
172;  in  Bacon  v.  Sheplin  (111.),  56  X.  E.  1123,  it  is  held 
that  under  the  general  issue  of  non  assumpsit  the  defendant 
may  prove  the  non-maturity  of  the  debt  sued  for,  and  need 
udt  jjlead  it  in  abatement  except  where  after  maturity  of  the 
debt,  for  a  valuable  consideration,  the  creditor  has  agreed 
to  extend  the  time  of  payment,  in  which  case  the  new  agree- 
ment must  be  set  up  by  a  plea  in  abatement.  0  Va.  L.  Keg. 
123,  note. 

A  plea  that  an  action  has  been  prematurely  brought  nuist 
be  in  abatement,  because  such  matter  only  goes  to  the  jilain- 
tiff's  present  right  of  action,  as  when  the  time  for  brimiing 
suit  has  arrived  then  the  action  could  be  maintained.  If  such 
matter  be  pleaded  in  l)ar  the  jdea  may  be  stricken  out  or 
held  bad  on  demurrer.  Xorris  v.  Scott  (Ind),  32  N.  E.  103. 
In  some  cases,  as  where  the  fact  that  the  action  has  been 
prematurely  brought  appears  on  the  face  of  the  jileading, 
the  remedy  is  by  demurrer,  but  where  extrinsic  matter  is 
relied  on  to  make  such  fact  a.jipear,  it  is  necessary  to  jilcad 
the  same  in  abatement.  Idem.  S.  C.  33  X.  E.  227:  Hogg's 
n.  cl'  F.  168. 


10  Legal   Aphorisms. 

Abbreviations. 
Alex.  County  f-or  Alexandria  County,  14  Gratt.  318. 
Etc.,  effect  of  its  use.   Y5  Va.  384 ;  1  Cow.  213. 
C.  P.  C.  appended  to  constable's  receipt,  3  Gratt.  293. 

Absent  Defendants. 
In  view  of  the  fact  that  the  proceeding  by  publication 
is  allowed  against  an  absent  defendant  who  may  never  have 
heard  of  the  demand,  the  greater  is  the  reason  for  requiring 
some  proof  to  be  exhibited.  The  court  is  to  be  satisfied  of 
the  justice  of  the  demand,  and  when  satisfied  of  this,  "may 
order  the  bill  to  be  taken  for  confessed."  2  Rob.  (old)  Pr. 
326.  There  is  nothing  in  the  Virginia  Statutes  to  sanction 
a  decree  against  absent  defendants  without  satisfactory 
proofs.     Sands'  Suit,  414. 

Accord  and  Satisfaction. 

Mr.  Minor  says  (4  Minor,  last  Ed.  770)  that  under  the 
plea  'of  nil  debet  the  defendant  may  prove  at  the  trial  accord 
and  satisfaction,  and  on  page  774  he  says  that  under  the 
plea  of  non-assumpsit  in  all  actions  of  assumpsit,  any  matter 
of  defence  whatever  (with  a  few  exceptions,  the  same  as  in 
the  case  of  nil  debet,  ante,  p.  770),  &c.,  have  been  admitted. 
But  in  the  case  of  McGuire  v.  Gadsby,  3  Gall,  on  p.  237 
(cited  in  7  Rob.  Pr.  550)  the  court  says:  It  was  truly  said 
by  the  counsel,  that  an  accord  cannot  be  given  in  evidence, 
but  must  be  pleaded ;  and  he  might  have  added,  that  it  must 
be  pleaded  with  satisfaction,. too;  that  is,  that  the  thing 
substituted  has  been  performed.  This  was  said  in  an  action 
of  debt.     Mr.   Greenleaf  says,   2  Green  Ev.   §   29:    In  the 


LK(iAI,      AlMlOUISMS.  11 

United  States,  an  aocord  with  satisfaction  may  Ik-  ;[riv<'M  in 
evidence  under  the  (general  issue  in  assumpsit,  and  in  actions 
on  the  case;  hut   in  debt,  covenant,  and  trespass  it   nm-t   he 
specially  pleadtd.     The  }>!(  a  is  that,  "after  the  making  of  the 
promises  in   the  declaration   mentioned"    (in  assumpsit)    or 
"after  committing-  the  said  supposed  grievances  in  the  dechir- 
ation    mentioned"    (in    ease)    or    trespass    (in    tres[)ass)    or 
''after  the  making  of  the  said  writing  obligatory"   (in  d  bt 
or   covenant)    "to   wit,    on    ».Ve.,    and    before    (or    after)    the 
commencement  of  this  suit,  he,  the  said  (defendant),  deliv- 
ered  to   the   plaintiff,    and   the   plaintiff   then   accepted   and 
received  of  and  from  the  said  (defendant)   (here  describing 
the  goods  or  things  delivered),  of  great  value,  in  full  satis- 
faction and  discharge  -of  the  several  promises"  (or  damages, 
or  d(^l)ts  and  moneys,  as  the  action  may  be)  ''in  the  deebira- 
tions  mentioned,   and  of  all   damages  by  the   plaintiff  sus- 
tained by  reason  of  the  non-performance"  (or  non-pa;s^nent, 
as  the  action  may  be)  "thereof.     And  this,"  kc.     The  usual 
form  of  the  rei)licHtion  is  by  protesting  the  delivery  of  the 
thing,   and  traversing  the  acceptance  X)f  it   in  satisfaction. 
Chitty's  Prac.  205,  444a,  619;  Story  PL  120,  \:A\;  Stephen 
on  PL  2:J5,  280;  2  Green  Ev.  §  2Sn.  1.     The  form  of  a  repli- 
cation is  laid  down  thus  in  :5  Chitty   PL  (7  Am.  E(L)  lir)<">: 
Predudi   non,    as    ante,    1145,    first    form    (which    may    l)e 
omitted  in  Virginia,  V.   C.   3205).     Because  he  saith  that 
the  said  defendant  did  not  d(>liver  to  the  said  plaintiff",  the 
said  pi})e  of  wine  (^or  if  a  bond  were  pleaded,  say  ''make  and 
seal,  and  as  his  act  ami  i\viH\,  deliver  to  the  said  plaintiff"  the 
said   supposed    writing    obligatory)    in    th(>    said    jilea    men- 
tioned, in  full  satisfaction  and  di>eharge  ^f  the  said  several 


12  Legal    Aphorisms. 

promises  and  uiidertakiiigs  in  the  said  declaration  mentioned ; 
in  manner  and  form  as  the  said  defendant  hath  above  in  his 
said  plea  in  that  behalf  alleged.  And  this  the  said  plaintiff 
prajs  may  be  enquired  of  by  the  country,  &c. 

Account. 

Open  account.— An  open  account  is  one  that  is  continuous 
or  current,  uninterrupted  or  unclosed  by  settlement  or  other- 
wise, consisting  of  a  series  of  transactions ;  also,  one  in  which 
some  item  in  the  contract  is  left  open  and  undetermined  by 
the  parties,  in  which  sense  it  may  exist  whether  there  be  but 
one  item  or  many,  but  if  a  single  claim  or  contract  is  certain 
and  fixed  in  all  its  terms  it  cannot  be  said  to  be  an  open 
account.     1  Cvc.  363.     See,  also,  59  Texas  369. 

An  account  stated  is  an  agreement  between  persons  who 
have  had  previous  transactions,  fixing  the  amount  due  in 
respect  of  such  transactions,  with  a  promise  either  expressed 
or  implied  on  the  part  of  the  debtor  to  pay  the  balance  as- 
certained to  be  due.  The  minds  of  the  parties  must  meet 
as  in  making  other  agreements,  and  they  must  both  assent 
to  the  account,  and  the  balance,  as  correct.  An  account 
stated  is  not,  however,  absolutely  conclusive  on  the  parties. 
It  establishes  prima  facie  the  accuracy  and  correctness  of 
the  items,  and  nn.less  this  presumption  is  overcome  by  proof 
of  fraud,  mistake,  or  error,  it  becomes  conclusive ;  Imt  the 
converse  of  this  proposition,  namely,  that  an  account  stated 
may  l)c  ii!i]>eached  by  fraud,  mistake,  or  error,  is  very  well 
settled.  See  on  this  subject  the  valuable  note  and  authoritips 
there  cited,  by  ^l\\  Freeman  to  Lockwood  v.  Thome  (X.  Y.), 
G2  Am.  Dec.  85;  also,  Perkins  v.  ITart,  11  Wheat.  237.     Tn 


Q 


Lp:gal    Ai'iioKlbMS.  V: 

the  latter  case,  it  is  said,  in  speaking  of  the  conclusiveness 
of  a  settled  account,  "If  it  be  confined  to  particular  items  of 
account,  it  concludes  nothing  in  relation  to  other  items  not 
stated  in  it."  Keith,  P.,  in  Camp  v.  Wilson,  97  Va.  274. 
The  consideration  fur  the  promise  is  the  stating  of  the  ac- 
count.   3  Kob.  Pr.  231. 

An  account  stated  implies  a  promise  to  pay  on  request 
so  that  any  subsequent  promise  to  pay  diifering  in  its  nature 
therefrom,  ex.  gr.  to  pay  on  a  particular  day  named,  is 
nudum  pact  tun,  unless  made  upon  a  new  consideration. 
Broom's  Com.  327. 

Ac.kxowledgme:xt. 
Cannot  be  altered  after  deed  is  recorded.     1  Peters  329. 

Actions. 

Where  a  suit  is  prematurely  brought,  it  is  ground  of  de- 
murrer or  nonsuit  (1  Chitty's  PI.  443.)  This  appears  to  me 
to  be  the  true  rule.  By  the  court,  3  Wend.  172  ;  but  it  is  said, 
13  X.  E.  156,  that  the  objection  must  be  made  by  plea  in 
abatement  as  entered,  see  alnitement. 

Defense  to  action  against  wrong  party  with  same  name 
as  the  plaintiff,  27  Gratt.  256. 

Wherever  a  cause  of  action  exists,  a  right  of  action  in  a 
court  of  law  is  incident  thereto,  and  inseparable  therefrom, 
even  by  the  agreement  of  the  parties.  14  Gratt.  ;>13.  Where- 
ever  the  common  law  gives  a  right  or  prohibits  an  injury,  it 
also  ffives  a  remedv  bv  action.  3  Blackstone  Com.  123;  24 
Mass.  550.  Commencement  of  action,  what  is,  5  \:i.  ]..  Reg. 
270;  6  Idem  700.  Bar,  Chy.  Pr.  140  n.  G ;  3  K..b.  Pr.  CIO; 
V.  C.  3359;  93  Va.  43S ;  12  Va.  L.  Reg.  075. 


14  Legal   Apiiokisms. 

When  separate  or  successive  actions,  growing  out  of  the 
same  contract  or  account,  or  growing  out  of  the  same  cause, 
may  and  may  not  be  brought  and  the  effect.  20  Gratt.  367; 
20  Gratt.  285;  15  Pick  415;  19  Wend.  207;  13  Wend.  645; 
8  Wend.  492 ;  1  Wend.  488. 

It  would  seem  to  be  a  principle  of  natural  justice,  that 
when  a  loss  has  happened,  he,  through  whose  means  it  hap- 
pened, should  sustain  it,  although  innocent,  rather  than  he 
who  is  not  only  innocent  but  wholly  without  imputation  of 
negligence,  17  Mass.  43 ;  but  the  plaintiff  mut^t  come  pre- 
pared with  evidence  to  show  that  the  intention  was  unlawful, 
or  that  the  defendant  was  in  fault;  for,  if  the  injury  was  un- 
avoidable, and  the  conduct  of  the  defendant  was  free  from 
blame,  he  will  not  be  liable.  2  Greenl.  Ev.  §§  85  to  92; 
60  Mass.  295-6. 

On  a  decree.     2  Eob.  Pr.  124. 

On  judgment  of  another  state  pending  an  appeal.  75  Ya. 
821. 

On  obligation  for  the  payment  or  delivery  of  a  mere 
commodity.  3  Eob.  Pr.  373 ;  7  Wend.  313.  Is  special  de- 
mand before  action  necessary.    21  Gratt.  631, 

Oil  promise  by  one  for  whose  benefit  a  promise  or  con- 
tract was  made  to  another.  4  Minor  451  ;  17  Mass.  404;  2 
Eob.  Pr.  307;  1  Johns.  130. 

On  promise  to  creditor  to  pay  him  debt  of  another.  5 
Tlill,  614. 

On  b.iiid  to  indemnify.  8  Wend.  452;  6  Wall,  94;  131 
Mass.  100. 

On  contract  l^y  which  goods  are  sold  to  1)e  ])ai(l  for  by 
note  ryr  1»ill  at  a  future  day.     21  Wend.  90;  175. 


Legal    Aimiorisms.  15 

For  (lobt  navablc  in  instalments.  22  Gratt.  647  ;  1  C'hittr. 
PL  116,  134,  129;  19  Wend.  208;  15  Pick.  413.  For  part, 
balanee  not  due.     22  Gratt.  647. 

Action  by  debtor  on  promise  of  third  jiarty  to  him  to  pay 
his  debt.  V.  C.  2415;  21  Gratt.  96;  13  Gratt.  206;  131 
Mass.  207;  119  Idem.  .VK],  r>07;  2  Rob.  Pr.  116;  3  Idem. 
618,  438;  19  Wend.  423;  see  94  Va.  236;  95  Va.  120. 

On  a  parol  contract  which  formed  a  part  of  or  was  con- 
comitant with  a  bill  of  sale.     2  Gratt.  542. 

For  goods  obtained  under  false  pretences,  under  color  of 
a  purchase,  against  vendee  or  his  assignee.  "1  Chitty.  PL 
172. 

For  fraudulent  representations.     11  Wend.  374. 

On  note  payable  to  party  by  wrong  name.    61  ^NFass.  114. 

For  discharge  without  cause,  where  employment  for  a 
term.  24  Gratt.  521;  2  Denis  609;  Michies  note  to  27 
Gratt.  455. 

For  money  delivered  in  sealed  envelope  to  be  given  to 
third  party.     11  AVend.  25. 

For  deposit  to  secure  bargain.     1  Chitty    PL  388. 

For  injury  to  horse  resulting  from  injury  from  being 
driven  beyond  place  designated.     57  Mass.  326. 

Against  druggist  for  negligence.  23  111.  App.  244;  27 
La,  (Ann.)  717;  ^2  T(  x.  ;547  ;  133  Monroe  227  S.  C,  56 
Am.  Dec.  563,  41  Am.  R.  728. 

By  B.  for  money  paid  to  C.  by  A.  to  be  paid  to  him.  1 
Gray  322;  14  Pick.  377;  17  Mass.  402. 

By  seller  against  purchaser  from  agent  who  did  not  dis- 
close agency.     2  Gratt.  247. 

By   third,  jierson   on    promise  to   second    person   to   pay 


16  Legal    Aphorisms. 

third  person.  3  Denis  45;  7  Cush.  337;  115  U.  S.  508; 
4  Denis  98;  150  Mass.  52;  Mete,  on  Cont.  237. 

By  sister  for  services  as  housekeeper.     2  Denio  149. 

Bv  son-in-law  for  nursino-  wife's  father.    3  Rand.  559. 

On  verbal  contract  to  pay,  for  work  and  materials,  in 
land,  79  Va.  302 ;  38  K".  E.  R.,  427,  436 ;  Siith.  Dom.  453. 

Against  bailees,  attorneys,  &c.,  for  negligence.  21 
Wend    30. 

Form  of  action  on  contract  completed  and  accepted.  94 
Ya.  734. 

Defense  to  action  against  wrong  party  with  same  name. 
27  Gratt.  256. 

ADMISSIOi\^S   AND   DeCLAKATIONS; 

A  parol  admission  by  a  party  to  a  suit  is  always  receiv- 
able in  evidence  against  him,  although  it  relate  to  the  con- 
tents of  a  deed  or  other  written  instrument ;  and  even  though 
its  contents  be  directly  in  issue  in  the  cause.     21  Gratt.  20. 

The  acknowledgments  of  parties,  whether  made  in  ex- 
press words,  or  inferred  from  acts,  are  always  competent 
evidence  against  them.  Ordinarily  they  are  open  to  contradic- 
tion  or  explanation  and  may  be  proved  to  be  untrue.  41 
Mass.  119-120.     Instances  of  conclusive  admissions.     Idem. 

The  answer  of  a  defendant  in  equity  is  competent  evi- 
dence against  the  same  defendant  in  a  suit  at  law  against 
him,  although  the  plaintiff  at  law  was  not  a  party  to  the  suit 
in  equity.     6  Rand.  541 ;  25  Ala.  653 ;  3  J.  J.  Marshall  103. 

A  party  is  not  bound  by  the  legal  consequences  of  the 
facts  stated  by  him.  It  is  for  the  court  to  judge  what  are 
those  legal  consequences.     17  Gratt.  167;    and  a  verdict  con- 


Legal    Aphorisms.  17 

trary  to  facts  admitted  by  the  parties  upon  the  record,  can- 
not be  the  foundation  of  a  judgment,  against  the  effect  of 
the  admission  of  the  party  on  the  record,  such  admission 
being  higher  evidence  of  the  truth  than  the  verdict  of  a  jury. 
3  Rand.  61. 

Adverse  Possession. 
Possession  may  be  made  out  by  proof  of  actual  settlement 
and  occupancy,  or  by  such  open,  notorious  and  habitual  acts 
of  ownership  importing  the  use  and  enjoyment  of  the  prop- 
erty, and  equivalent  to  actual  occupancy,  or  by  proof  of  such 
actual  occupation  and  enjoyment  of  another  portion  of  the 
tract  claimed  by  him  of  which  the  disputed  premises  is  also 
parcel,  11  Gratt.  426;  or  by  evidence  of  reputed  ownership, 
101  Va.  794. 

Adverse  possession  for  the  statutory  period  confers  title 
superior  to  any  paper  title.  It  not  only  deprives  the  former 
owner  of  his  remedy,  but  passes  title  to  the  occupant,  and 
the  latter  may  maintain  a  bill  in  equity  against  the  former 
to  remove  the  cloud  on  the  title  created  bv  the  latter's  re- 

t 

corded  deed.  Burk's  xA.bs.  of  Lectures  on  Conveyancing, 
page  1,  citing  Sharon  v.  Tucker,  144  U.  S.  544;  81  Va. 
668 ;    27  W.  Va.  468. 

Affidavit. 

Read  as  deposition,  no  objection  being  made.  25  Gratt. 
134;  94  Va.  252. 

Agency. 
An  agency  may   be   constituted   by   an   express   limited 
authority  to  make  such  a  contract,  or  a  lariror  authoritv  to 


18  Legal    Aphorisms. 

make  all  falling  within  the  class  or  description  to  which  it 
belongs,  or  a  general  authority  to  make  any;  or,  it  may  be 
proved  by  showing  that  such  a  relation  existed  between  the 
parties  as  by  law  would  create  the  authority ;  as,  for  instance, 
that  of  partners,  by  which  relation,  when  complete,  one  bcr 
comes  by  law  the  agent  of  the  other  for  all  purposes  neces- 
sary for  carrying  on  the  particular  partnership,  whether 
general  or  special,  or  usually  belonging  to  it ;  or  the  relation 
of  husband  and  wife,  in  which  the  law,  under  certain  circum- 
stances, considers  the  husband  to  make  his  wife  an  agent. 
In  all  these  cases,  if  the  agent,  in  making  the  contract,  acts 
on  that  authority,  the  principal  is  bound  by  the  contract,  and 
the  agent's  contract  is  his  contract,  but  not  otherwise.  This 
agency  may  be  created  by  the  immediate  act  of  the  party,  that 
is,  by  really  giving  the  authority  to  the  agent,  or  representing 
to  him  that  he  is  to  have  it,  or  by  constituting  that  relation 
to  which  the  law  attaches  agency ;  or  it  may  be  created  by  the 
representation  of  the  defendant  to  the  plaintiff,  that  the  party 
making  the  contract  is  the  agent  of  the  defendant,  or  that 
such  relation  exists  as  to  constitute  him  such ;  and  if  the 
plaintiff  really  makes  the  contract  on  the  faith  of  the  de- 
fendant's representation,  the  defendant  is  bound ;  he  is  es- 
topped from  disputing  the  truth  of  it  with  respect  to  that 
contract ;  and  the^epresentation  of  an  authority  is  quoad  hoc, 
precisely  the  same  as  a  real  authority  given  by  the  defendant 
to  the  supposed  agent.  This  representation  may  be  made 
directly  to  the  plaintiff,  or  made  publicly  so  that  it  may  be 
inferred  to  have  reached  him,  and  may  be  made  by  words  or 
conduct.     Pollock,  C.  B.  15  M.  &.  W.  527;  2  Rob.  Pr.  331. 


Legal    Apiiokisms.  19 

Agreement. 

All  agreement  is  the  result  of  the  inntnal  assent  of  two 
parties  to  certain  terms,  and  if  it  is  clear  that  there  is  no 
consensus,  what  may  have  been  written  or  said  becomes  im- 
material. Lord  Westbury  in  Chemock  v.  The  Marchioness 
of  Ely,  4  De  G.  J.  &  S.  638. 

When  said  to  be  open,  so  that  no  recovery  can  be  had 
under  the  indchitatus  counts  in  assumpsit.     See  Assumpsit. 

Agreements  of  Counsel. 

Form  for  introduction  of  evidence.  "The  defendants 
might  in  making  their  defence  to  said  (motion),  give  in  evi- 
dence, without  any  pleading  filed  by  them,  any  matter  which 
could  be  given  in  evidence  under  any  special  plea  in  bar 
good  in  law;  and  that  the  plaintiff  might  give  in  evidence, 
by  way  of  rebuttal,  any  matter  Avhich  could  be  given  in  evi- 
dence under  any  replication  that  might  be  made  to  such 
special  plea  in  bar  as  aforesaid."    22  Gratt.  111. 

"This  paper,  it  is  agreed,  shall  avail  as  much  as  if  the 

testimony  had  been  given  by in  a  dciX)sition  after 

due  notice,  but  the  testimony  is  excepted  to  as  illegal  and 
incompetent.  It  is  not  admitted  that  such  testimony  is  evi- 
dence in  this  cause  for  any  purpose." 

Form  for  hearing  common  law  causes  together.*  100  Va. 
144.  Where  a  chancery  cause  was  pending  and  an  action 
of  ejectment  was  brought,  a  decree  was  entered  in  the  chan- 
cery cause,  which  provided  that  all  questions  of  law  and 
fact  affecting  the  title  of  the  laud  in  the  bill  and  proceedings 
mentioned  might  and  should  be  adjudicated  in  that  suit.  101 
Va.  701-2. 


20  Legal    Aphorisms. 

Alimony. 

Allowed  without  asking  divorce.  1  Minor  308 ;  7  Va. 
L.  Eeg.  220. 

Allegata  et  Probata. 

Averments  without  proof  and  proof  without  averments 
are  equally  unavailing.  10  Wall  302 ;  95  Va.  375 ;  94  Va. 
100.  Instances  in  equity.  2  Eob.  (old)  Pr.  311.  There 
are  two  sorts  of  allegations,  the  one  of  matter  of  substances 
which  must  be  substantially  proved ;  the  other  of  description 
which  must  be  literally  proved.     3  Rob.  Pr.  563,  567. 

Amendment. 

Plea  in  abatement  is  a  part  of  the  record  by  which 
amendment  mav  be  made.     16  Peters  141 :  5  Eob.  Pr.  94. 

Must  be  consistent  with  the  count  or  counts  originally 
made  and  be  for  the  same  cause  of  action.     2  Pick.  425. 

Another  Suit  Pending. 
Form  of  rule  in  the  chancery  suit,  requiring  plaintiff  to 
elect:  On  the  motion  of  the  defendant,  a  rule  is  awarded 
against  the  plaintiff  requiring  him  to  elect  by  the  next  term 
of  the  court,  whether  he  will  prosecute  the  action  at  law, 
(describing  it)  or  the  chancery  suit  in  which  he  filed  his  bill 

in  this  court  against at  the .rules, 

19.  .  .  .,  for  the  same  matter  involved  in  said  action,  the  court 
being  of  oj)inion  that  the  said  plaintiff  cannot  prosecute 
both  said  action  and  said  suit.  And  this  cause  is  continued 
until  the  next  term  of  the  court.     81  Va.  67. 

Apparel. 
See  Common  Carriers. 


Legal   Aphorisms.  21 

Appeal  axd  Writ  of  Error. 

Proper  order  on  reversal  when  money  has  been  paid.  16 
Graft.  362;  5  Gratt.  272. 

When  the  chances  are  equal  that  the  verdict  resulted  from 
the  error  of  the  jndge,  a  new  trial  will  be  granted.  27 
Gratt.  452. 

A  writ  of  error  may  be  brought  to  reverse  his  own  judg- 
ment, if  erroneous  or  given  for  a  less  sum  than  he  has  a 
right  to  demand.     18  Gratt.  242. 

Amount  to  give  jurisdiction.     10  Va.  L.  Reg.  338. 

When  a  question  of  fact  is  passed  upon  by  the  jury  and 
the  evidence  is  conflicting.  Barbour  v.  Melendy,  88  Va. 
595,  citing  Snoufer  v.  Hansbrough,  79  Va.  166  (issue  out 
of  chancery)  ;  ]\ragarity  v.  Shipman,  82  Va.  784  (a  com- 
missioner's report).  In  Shipman  v.  Fletcher,  91  Va.  477,  it 
is  said  that  the  verdict  in  an  action  of  law,  in  such  cases,  is 
conclusive. 

Argument  of  Counsel. 

Comment  on  failure  of  adversary  to  examine  a  witness 
who  is  in  court.  It  is  not  improper  for  the  trial  court  to 
permit  counsel,  in  argiiment  before  the  jury,  to  comment 
on  the  fact  that  the  other  party  has  not  called  and  examined 
a  material  witness  summoned  on  his  behalf,  and  present, 
and  to  ask  such  question  as  may  be  proper  to  lay  the  founda- 
tion for  such  comment.  But  such  matters  are  largely  within 
the  discretion  of  the  trial  court.  16  S.  E.  (W.  Va.)  602. 
It  is  urged  by  the  plaintiif,  that  the  jury  might  draw  infer- 
ences from  the  fact  that  the  engineer  and  firemen  w^ho  were 
in  charge  of  the  train  at  tlu^  time  of  the  accident  were  in 


22  Legal   Aphorisms. 

court,  aud  not  called  by  the  defendant.  This  would  have 
been  so,  if  the  plaintiff  had  introduced  evidence  tending  to 
sustain  her  claim ;  but  she  could  not  prove  her  case  by  making 
allegation,  and  asking  the  jury  to  consider  them  proved  be- 
cause, if  they  were  not  true,  the  defendant  had  the  means 
of  showing  it.  These  witnesses  might  have  been  called  by 
either  side.  134  Mass.  502;  see,  also,  32  Gratt.  649;  54 
Fed.  481;  140  Fed.  225;  49  Am.  St.  K.  400;  TO  Id.  350; 
144  TJ.  S.  165 ;  note  602  of  Cowen  &  Hill  to  Phil.  Ev.  Vol.  1. 

Assignments. 

Are  rights  of  action  for  personal  injuries  assignable  in 
Virginia.     3  Va.  L.  Reg.  608. 

Order  not  specifying  fund  out  of  which  it  is  to  be  paid 
is  not  an  assignment.  102  Ala.  537 ;  56  K.  J.  Eq.  187 ;  6 
Ohio  48 ;  21  Oregon  202 ;  68  Tex.  22. 

Order  on  particular  fund:  But,  as  was  said  by  Tucker 
J.  in  Brooks  v.  Hatch,  6  Leigh  534,  the  drawee,  though  he 
is  the  drawer's  debtor,  is  not  bound  to  accept  his  draft 
against  his  own  will.  The  creditor  has  no  right  to  compel 
his  debtor  to  become  debtor  to  another  man  (our  statute  au- 
thorizes this  in  the  case  of  assignments  of  assignable  securi- 
ties). The  drawee  may,  therefore,  refuse  to  accept;  and  in 
that  case  he  is  not  liable  to  pay  at  all  .  .  .  And  if  accept- 
ance of  the  order  be  refused,  three  courses  remain  for  the 
holder:  he  may  either  return  it,  in  which  case  the  parties 
are  in  statu  quo ;  or,  he  may  sue  the  drawer  upon  it,  the 
drawee  having  refused  to  accept  it ;  or,  he  may  retain  it,  give 
notice  to  the  person  on  whom  it  is  drawn  not  to  part  with 
the  fund  and  sue  in  equity  for  its  recovery.     81  Va.   832. 


Legal    Aphorisms.  23 

The  order  mav  be  on  a  fund  not  in  existence.  94  Va.  434 : 
102  Va.  728. 

Orders  for  parts  of  a  debt  to  different  parties  enforced 
in  equity.   40  W.  Va. ;  ^0  Va.  833 ;  S.  C.  38 ;  S.  E.  538. 

Payee  must  be  duly  diligent  to  collect  or  drawer  is  dis- 
charged. 5  Eob.  Pr.  565.  To  what  extent  payee  is  charge- 
able.   Idem. 

When  limitations  begin  to  run  against  assignee.  1  Rob. 
Pr.  477 ;  9  Leigh  473. 

An  assignee  is  the  purchaser  for  a  valuable  consideration 
of  all  the  securities  of  the  assignor  and  of  all  his  remedies. 
27  Gratt.  837. 

In  conveyances  it  is  advisable  to  insert  a  clause  by  which 
the  grantor  shall  expressly  assign  to  the  grantee  the  benefit 
of  any  covenants  of  title  held  by  him  of  his  predecessor. 
7  Va.  L.  Reg.  69. 

Both  deeds  of  trust  and  mortgages  are  regarded  in 
equity  as  mere  securities  for  the  debt,  and  whenever  the 
debt  is  assigned,  the  deed  of  trust  or  mortgage  is  assigned 
or  transferred  with  it.  The  same  principles  apply  to  the 
vendor's  lien  resulting  from  the  retention  of  the  legal 
title.  25  Gratt.  453;  27  Gratt.  837.  The  assignee  has  three 
remedies:  An  absolute  right  to  resort  to  the  debtor  himself; 
2nd,  to  the  lien  u}X)n  the  land ;  and  3d,  contingently  to  the 
assignor  himself.  The  loss  of  the  latter  remedy,  by  the  want 
of  due  diligence,  can  no  more  affect  the  recourse  to  the  land 
than  it  can  affect  the  right  of  reverting  to  the  debtor  himself. 
The  assignment  of  the  bond  (or  note)  is  ipso  facto  an  assign- 
ment of  the  lien.  Having  once  vested  by  the  assignment,  that 
lien  is  not  divested  by  the  failure  to  sue  the  debtor.     The 


24  Legal    Aphorisms, 

assignee  having  two  remedies,  both  absolute  and  undoubted, 
may  resort  to  either.      25  Gratt.  457. 

Assumpsit. 
Indebitatus  Count. — What  it  is  and    what    it    covers.    1 
Chitty.  PL  373. 

When  several  counts,  declaration  must  aver  that  plain- 
tiff has  not  paid  the  several  suras  of  money  aforesaid,  and 
every  part  thereof.  If  this  be  not  done  but  the  breach  charged 
at  the  end  of  the  last  count  be,  that  he  hath  not  paid  "the 
said  sum  of  money,"  and  it  appear  upon  demurrer  to  evi- 
dence, that  all  the  evidence  adduced  by  the  plaintiff  applies 
only  to  the  first  count,  judgment  ought  to  be  given  for  the  de- 
fendant. 5  Munf.  196;  accord  4  Rob.  Pr.  508.  And  it 
would  seem  that  the  same  result  would  follow  from  proper 
instructions  from  the  court. 

Recovery  on  check  or  note  on  common  counts.  8  Gratt. 
114,  where  note  was  filed  in  place  of  the  account.  93  Va. 
686;  28  Gratt.  174;  4  Rob.  Pr.  548;  13  Pet.  302;  see  4 
Minor  695,  particularly  on  count  for  money  lent;  2  Leigh 
198.  Under  a  general  indebitatus  count  a  common  promis- 
sory note  may  be  given  in  evidence  wnth  proof  of  execution 
and  of  the  consideration.  2  Johns  R.  235 ;  and  a  note  pay- 
able in  specific  articles  is  admissible  under  the  money  counts. 
2  Johns  R.  235 ;  7  Wend.  311. 

Where  one  man  has  paid,  under  legal  compulsion,  money 
which  ought  to  have  been  paid  by  another,  or  where,  under 
such  compulsion,  the  property  of  one  has  been  taken  to  dis- 
charge the  debt  of  another,  a  remedy  is  afforded  by  this  ac- 
tion in  its  most  general  form.     8  T.  R.  308;  10  Leigh  351. 


Legal   Aphorisms,  25 

Money  had  and  received.  The  action  of  indehitdtus  as- 
sumpsit for  money  had  and  received  will  lie  whenever  one 
has  the  money  of  another  which  he  has  no  right  to  retain, 
bnt  which  ex  equo  et  bono,  he  should  pay  over  to  that  other. 

It  now   embraces    all   cases   in   which  the 

plaintiff  has  equity  and  conscience  on  his  side,  and  the  de- 
fendant is  bound  by  ties  of  natural  justice  and  equity  to 
refund  the  money.  In  such  a  case,  no  express  promise  need 
be  proved,  because  from  such  relation  between  the  parties 
the  law  will  imply  a  debt  and  give  this  action  founded  on 
the  equity  of  the  plaintiff's  case,  as  it  were  upon  a  con- 
tract, quasi  ex  contractu,  as  the  Roman  law  expresses  it,  and 
upon  this  debt  founds  the  requisite  undertaking  to  pay. 
Per  Buller,  J.,  2  T.  R.  370 ;  16  Gratt.  232. 

Goods  sold  and  delivered :  Delivery  express  or  construc- 
tive must  be  proved.     3  Hill  141. 

In  an  action  for  money  paid,  the  recovery  is  the  precise 
amount  paid.    'IQ  Gratt.  460. 

When  to  sue  in  case  and  trover  (or  one  of  them)  and 
when  in  assumpsit.  1  Chitty  PI.  164;  3  Rob.  Pr.  399;  97 
Va.  514.  Where  there  has  been  a  tortious  taking  of  his 
property  he  may  bring  trespass  or  trover,  or  he  may  waive 
both  and  bring  assumpsit  for  the  proceeds  when  it  shall  have 
been  converted  into  money.  5  Pick.  197.  There  must  be 
a  tort  to  waive.  10  Pick.  161.  And  when  a  party  waives 
the  tort  and  sues  for  money  had  and  iTccived,  his  recovery 
is  limited  to  the  money  actually  received.  3  Rob.  Pr.  399 ; 
61  Mass.  444;  2  Greenl.  Ev.,  see  117.  Instances  of  waiving 
tort  and  bringing  assumpsit.    16  Gratt.  232;  20  Id.  290. 


26  Legal   Aphoeisms. 

Declaration  must  show  consideration  positively  averred. 
98  Va.  222.  Foreign  bills  of  exchange,  negotiable  notes  upon 
the  same  footing  and  other  promissory  notes  constituting  ex- 
ceptions to  this  rule.  1  Rob.  (old)  Pr.  146;  V.  C.  2852. 
And  must  allege  promise  to  pay,  the  form  of  the  averment 
being  the  same  on  positive  and  implied  promises.  4  Rob. 
Pr.  231 ;  46  W.  Va.  918.  And  where  there  are  several 
counts,  in  the  general  conclusion  say:  has  not  paid  the  sev- 
eral sums  of  money  and  every  part  thereof.  5  Munf.  196; 
4  Rob.  Pr.  508. 

Verdict.  When  the  jury  allow  credits  they  ought  to  be 
deducted  from  the  amount  owed  and  a  verdict  found  for  the 
residue  in  damages.     1  Rob.  (old)  Pr.  367. 

Where  there  is  a  special  agreement  which  is  open  and 
subsisting  at  the  time  of  action  brought,  plaintiff  cannot 
recover  upon  the  indebitatus  counts — a  special  count  on  the 
agreement  must  be  laid.  An  agreement  is  open  and  subsist- 
ing where  it  has  not  been  wholly  performed  by  the  defendant, 
or  its  further  execution  has  not  been  put  an  end  to,  before 
its  completion,  by  the  defendant,  or,  by  the  agreement  of  the 
parties;  and  where  the  agreement  embraces  a  number  of 
distinct  subjects  which  admit  of  being  separately  executed 
and  closed,  it  must  be  taken  distributively,  each  subject  be- 
ing considered  as  forming  the  matter  of  a  separate  agreement 
after  it  is  so  closed,  and  recovery  may  be  had  under  the  in- 
debitatus counts  for  the  subjects  which  are  not  open  at  the 
time  of  action  brought  while  there  can  be  no  recovery  on 
those  subjects  which  remain  open.  Perkins  v.  Hart,  11 
W^heat.  237 ;  6  L.  C.  P.  467 ;  see  also  2  Rob.  Pr.  462.  The 
special  contract  continuing  open,  the  plaintiff  must  state 
that  contract  and  the  breach  of  it.    2  Rob.  Pr.  464. 


Legal   Aphorisms.  27 

Use  and  occupation:  W  C  2787  practically  the  same 
with  11  Geo.  2  ch.  1!);  1  Cliitty   PL  377. 

Action  for  use  and  occupation  lies  where  the  agreement 
is  by  deed  in  words  not  indicating  an  actual  demise.  1 
Chitty  PI,  118.  And  against  a  tenant  holding  over  after  the 
expiration  of  a  demise  by  deed,  to  recover  rent  accruing  after 
the  end  of  the  term.  1  Chitty  PI.  378.  But  cannot  be  sujt- 
ported  when  possession  is  adverse,  and  the  relation  of  land- 
lord and  tenent  never  existed,  the  action  then  is  ejectment  or 
trespass.  1  Chitty  PI.  121.  Action  for  use  and  occupation 
proceeds  on  the  ground  of  contract.  It  will  not  lie  against 
a  trespasser  nor  against  his  personal  representative.  2  Rob. 
Pr.  381. 

Attachment. 
It  would  seem  fitting  and  only  just  to  the  memory  of 
that  great  lawyer  and  eminent  jurist,  the  late  Judge  William 
T.  Joynes,  to  head  this  title  with  this  statement. 

In  the  interval  between  his  incumbencies  on  the  bench  of 
the  Supreme  Court  of  Appeals  of  Virginia,  he  was  elected  a 
member  of  the  Legislature.  LTpon  his  return  to  Petersburg, 
after  its  adjournment,  he  w^as  asked  in  my  presence  why  he 
had  consented  tu  go.  He  replied  in  substance,  that  he  had 
prepared  with  great  care  an  attachment  law^  which  he  w'anted 
to  donate  to  his  native  State;  that  he  introduced  the  bill,  and 
that  when  it  came  from  the  committee  he  did  not  recognize  it ; 
that  it  was  further  amended  on  its  reading,  and,  as  finally 
passed,  the  attachment  law  was  in  a  worse  shape  than  before. 

John  W.  Friend. 


28  Legal   Aphorisms. 

"To  hinder,  delav  or  defraud"  means  actual  fraud,  as 
distinguished  from  fraud  in  law,  or  constructive  fraud.  87 
Va.  472;  1  Kob.  Rep.  131;  11  Gratt.  561;  88  Va.  980;  60 
K  E.  851;  83  Am.  St.  E.  142;  112  Fed.  505;  8  Bank  E. 
455.  But  the  fact  that  a  conveyance  is  without  valuable 
consideration  raises  the  presumption  of  fraud  in  fact.  11 
Gratt.  561 ;  1  Eob.  Eep.  131-138. 

Form  of  memorandum  where  there  are  garnishees.  103 
Va.  256. 

Foreign,  is  not  a  proceeding  in  rem,  only  quasi  in  rem. 
2  Brock.  131. 

Second  attachment  must  be  levied  by  same  officer  levying 
the  first.     5  Mass.  271 ;  67  Tex.  615. 

Attorney  at  Law. 

Liable  for  costs  of  suit  brought  in  fictitious  name  or  in 
the  name  of  a  party  without  his  privity  or  consent.  11 
Gratt.  24. 

Professional  statements  of  counsel  are  to  be  regarded 
as  affidavits.    Eice  v.  Griffiths,  9  Iowa  539. 

When  he  desires  to  quit  his  client  he  must  give  him 
reasonable  notice.  Although  an  attorney  who  undertakes 
a  cause  is  not  bound,  at  all  events,  to  proceed  with  it  if  he 
is  not  supplied  with  funds,  yet  an  attorney  who  has  under- 
taken a  defence  with  a  view  to  trial,  cannot  abandon  it  on 
the  eve  of  the  assizes  without  giving  his  client  a  reasonable 
opportunity  of  resorting  to  other  assistance.     1  Eob.  Pr.  448. 

Attorney's  fees.  Infants'  contracts,  attorney's  fees, 
necessaries.  8  Va.  L.  E.  688.  In  suits  or  actions  for  in- 
fants.    8  Va.  L.  Eeg.  138.    Lien  of  attorney  for  his  fees.     2 


Legal   Aphorisms.  29 

Eob.  Pr.  519;  36  W.  Va.  141  S.  C. ;  14  S.  E.  456;  4  Minor 
210;  3  A.  &  E.  Ency.  of  Law  (Xew  Ed.)  447.  As  elements 
of  damages.    8  Va.  L.  Reg.  512. 

Auction. 
Sale  by;  how  made,  and  when  complete.   2  Rob.  Pr.  415. 

Auctioneer. 
Liability  for  stolen  goods.     22  Wend.  285. 

Averment. 

Holpen  bv,  i.  e.,  bv  extrinsic  evidence.  2  Phil.  Ev.  751; 
21  Wend.  659. 

Bailment. 

Certainly  before  a  sale  can  be  made  by  the  pledgee,  with- 
out judicial  proceedings,  he  must  give  reasonable  notice  to 
the  debtor  to  redeem.  Such  notice  is  indispensable.  2  Kent's 
Com.  58*2,  margin;  Stearns  v.  Marsh,  4  Denio  227.  So,  also, 
reasonable  notice  must  be  given  to  the  debtor  of  the  time  and 
place  of  sale.  Id.  2  Story's  Eq.,  sec.  1008.  "The  creditor 
will  bo  held  at  his  peril  to  deal  fairly  and  justly  with  the 
pledge,  both  as  to  the  time  of  the  notice  and  the  manner  of 
the  sale."  2  Kent's  Com.  supra;  22  Gratt.  261.  But  he 
may  also  bring  an  action  on  the  contract  or  for  the  money. 
3  Hill  218. 

Bailee's  right  of  action.     8  Va.  L.  Reg.  75. 

General  deposit  in  bank  is  not  a  bailment.  98  Va.  278; 
99  Va.  54;  100  Va.  311.  Though  we  call  it  a  deposit,  it 
is  a  loan,  and  not  a  bailment.     18  Gratt.  512. 

Declaration  upon  a  special  contract  of  bailment  and 
joinder  of  counts  in  indebitatus  assumpsit  with  count  setting 
out  the  special  agreement,     9  Gratt.  184. 


30  Legal   Aphorisms. 

Bill  of  Paeticulars. 
A  bill  of  particulars  is  an  amplification,  or  more  particu- 
lar specification  of  the  matter  set  forth  in  the  pleading.  4 
Eob.  Pr.  889.  It  is  not  to  be  construed  with  all  the  strictness 
of  declarations.  We  ought  to  give  particulars  of  demand 
rather  a  liberal  than  a  restraining  construction.     Id.  900. 

Bill  of  Exceptions. 

A  writ  of  error  did  not  bring  up  for  review  the  evidence 
on  the  trial  and  the  decisions  of  the  judge  there  until  the 
statute  of  Westminster  2,  ch.  31,  gave  a  bill  of  exceptions. 
Tidd's  Pr.  787;  25  Wend.  167. 

Sufficient,  when  court  refuses  to  receive  any  evidence  on 
the  subject,  without  giving  names  of  witnesses  or  stating 
the  evidence  in  detail.     6  Va.  L.  Reg.  34. 

Evidence  may  be  made  part  of  the  record  by  consent  of 
parties,  without  its  being  made  a  part  of  the  record  by  any 
order  or  act  of  the  court.    23  Gratt.  353. 

Taken  in  a  chancery  cause.     10  Gratt.  208. 

Bona  Fide  Purchaser. 

Defence  cannot  be  made  by  demurrer;  it  must  be  made 
by  plea  or  answer,     83  Va,  415. 

A  party  seeking  the  aid  of  a  court  of  equity  for  relief 
against  a  bona  fide  purchaser,  a  legal  title  must  allege  and 
prove  notice  of  any  latent  equity,  21  Gratt.  249. 

Bond. 

For  the  return  of  money  at  the  death  of  obligor.  31 
Gratt.  535 ;  32  Gratt.  830 ;  75  Va.  200.     The  law  does  not 


Legal   Aphorisms.  31 

make  any  inference,  one  way  or  the  other,  as  to  the  con- 
sideration.   Walker  v.  Walker,  13  Iredell  335. 

Plea  of  nil  debt  to  action  on,  how  far  allowed.    2  Hill  232 
and  note;  1  Chitty  PI.  518;  2  Va.  Dec.  588. 

•Brackets. 

Use  and  significance  of.    9  Gratt.  72,  81,  83. 

Bridges. 
Form  of  contract  for  construction  of.    11  Gratt.  676. 

Builders"  Contract. 

A  desirable  provision  and  forms  of.    2  Rob.  Pr.  414 ;  98 
Va.  503. 

Form  of  declaration  on.     22  Gratt.  303. 

What  declaration  on,  against  surety  must  aver.  19  Wend. 
604. 

Buildings. 

Which  tenant  has  right  to  remove  are  personal  property. 
28  Gratt.  115. 

Overlapping  roof  or  eaves  of  a  building.    88  Mass.  104. 

Burden  of  Proof. 
What  consideration  should  be  attached  to  the  fact  that 
accessible  witnesses  are  not  called  to  the  stand.  134  Mass. 
502;  32  Gratt.  649;  81  Va.  584;  54  Fed.  R.  481;  S.  C.  4 
C.  C.  A.  454;  49  Am.  St.  R.  400;  140  Fed.  R.  225;  70  Am. 
St.  R.  350.  In  the  case  of  Wyeth  v.  Mahoney,  32  G.  649, 
Staples,  J.,  says:  "And  it  is  observable  throughout  that 
whilst  the  appellant  had  the  right  to  testify  and  give  his  ver- 
sion of  the  transaction,  he  has  not  thought  proper  to  do  so. 


32  Legal    Aphokisms. 

It  is  impossible  to  avoid  a  suspicion,  at  least,  that  the  appel- 
lant was,  perhaps,  not  willing  to  encounter  the  test  of  a  pub- 
lic cross  examination,"  etc. 

Case. 

When  to  be  preferred  to  assumpsit.    3  Rob.  Pr.  438 ;  1 
Chittj  PL  164. 

The  manner  in  which  the  breach  is  stated  does  not  deter- 
mine the  cause  of  action,  whether  it  is  case  or  assumpsit.  21 
Wend.  29.  If  the  cause  of  action,  as  stated  in  the  declara- 
tion, arises  from  a  breach  of  promise,  supported  by  a  direct 
consideration,  the  action  is  ex  contractu;  but  if  from  a  breach 
of  duty,  growing  out  of  the  contract,  it  is,  in  form  and  in 
fact,  an  action  ex  delicto  and  case.  18  Ala.  288.  Actions 
held  to  be  on  contract.  32  K  E.  R.  802 ;  122  Mass.  163 ;  41 
I^.  W.  524;  12  Pac.  699.  Action  held  to  be  in  tort.  32  K 
E.  324.  See,  also,  Penn.  R.  R.  Co.  v.  Smith  106  Va. ;  S.  C. 
56  S.  E.  R.  567;  46  S.  E.  (W.  Va.)  918.  The  rule  is  to 
treat  the  count  as  partaking  of  the  nature  of  the  action,  so 
that  if  the  action  is  ex  delicto,  the  count  will  be  intended  as 
ex  delicto,  also,  unless  there  be  something  in  its  form  and 
structure  which  plainly  forbids  such  intendment.  25  Gratt. 
769. 

Cektioeaei. 

A  certiorari  lies  upon  all  final  adjudications  of  an  in- 
ferior court  or  officer,  invested  by  the  Legislature  with  power 

to  decide  on  the  property  or  rights  of  the  citizen,  and  which 

court  or  officer  acts  in  a  summary  way  or  in  a  new  course 

different  from  the  common  law.    Tidd.  Pr.  1051,  1138.  Coke 

Lit.  288b. ;  2  Salk.  504 ;  1  Salk.  144,  146 ;  2  Black.  Com.  32 


Legal   Apiiokisms.  33 

to  44;  2  Coinos'  R.  182;  20  Johns  SO  *  *  *  *  * 
A  certiorari  is  defined  in  Bacon's  Abr.,  to  be  a  writ  issuing 
out  of  chancery  or  the  King-'s  bench,  directed  to  the  judges 
or  officers  of  inferior  courts  or  tribunals,  commanding  them 
to  return  the  records  of  a  cause  depending  before  them. 
Bacon's  Abr.,  fit.  Certiorari.  It  may  be  directed  to  an  in- 
ferior court  whether  it  be  an  ancient  or  a  newly  created  juris- 
diction. Bacon's  Abr.  certio,  B.  This  writ  is  applied  to 
various  uses,  other  than  that  for  removing  final  determina- 
tions for  review,  but  it  is  not  necessary  here  to  notice  them. 
It,  however,  never  lies  to  remove  a  civil  proceeding  before 
an  inferior  magistrate,  who  has  jurisdiction  by  statute,  until 
after  a  judgment  or  final  determination  therein.  20  Johns 
R.  83. 

A  common  law  certiorari,  in  its  office  of  removing  final 
adjudications  for  review,  possesses  all  the  characteristics  of  a 
writ  of  error.  It  performs  the  same  office  as  to  inferior  sum- 
mary tribunals,  which  a  writ  of  error  does  as  to  an  inferior 
court  of  record.  And  I  cannot,  upon  principle,  see  why  the 
same  results  should  not  follow  in  the  train  of  a  certiorari  as 
in  that  of  a  writ  of  error.  A  writ  of  error  only  brings  up  the 
record.  It  did  not  reach  the  merits  nor  bring  up  for  review 
the  evidence  on  the  trial,  and  the  decisions  of  the  judge  there, 
until  the  statute  gave  a  bill  of  exceptions.  Stat,  of  West 
2  Ch.  31  (13  Ed.  1.)  ;  Tidd.  Pr.  787;  15  Wend.  533,  4;  17 
Wend.  467.  If  the  analogy  then  between  a  certiorari  and  a 
writ  of  error  is  to  be  preserved,  the  fornu'r  cannot  bring  up 
for  review  the  evidence,  and  the  decisions  and  rulings  of  the 
inferior  tribunals  thereon ;  but  only  the  record  or  the  proceed- 
ings and  orders  which  are  in  the  nature  of  a  record.     In  the 


3-i  Legal,   Aphokisms, 

return  of  a  certiorari  the  record  itself  or  the  tenor  of  it  is  to 
be  certified.  Macon's  Abr.,  tit.  Certiorari  H.,  where  there  is 
technically  no  record,  the  written  proceedings  and  orders,  or 
a  history  of  the  proceedings  and  the  written  orders  which  are 
in  the  nature  of  records  are  to  be  certified.  And  whatsoever 
is  put  into  the  return  to  a  certiorari  by  way  of  explanation 
or  otherwise,  besides  what  is  ordered  to  be  returned,  is  not  to 
be  regarded.    Bacon's  Abr.,  tit.  Certiorari  H. 

It  is  apparent  to  my  mind  that  a  common  law  certiorari, 
from  its  analogy  to  a  writ  of  error  does  not  bring  up  for  re- 
view any  of  the  evidence  of  the  trial  before  the  inferior  tri- 
bunal, or  the  decisions  thereon.  This  seems  to  be  settled  by 
the  doctrine  in  England. 

When  the  clerk,  by  accident,  in  making  the  copy  substi- 
tutes one  word  for  another  found  in  the  record,  the  spirit  and 
object  as  well  as  the  letter  of  this  act,  as  well  as  the  common 
law  function  of  the  writ,  would  seem  to  aiford  a  remedy 
whereby  the  record,  as  in  truth  it  is,  can  be  brought  to  this 
court  a  better  record.  In  Shifilet  v.  Com.  14  Gratt.  652,  where 
there  appeared  an  omission  in  the  transcript  of  the  finding 
of  the  indictment,  a  certiorari  was  held  proper  to  secure  a 
better  record.  So  in  William's  14  W.  Va.  869.  If  a  record 
is  defective  or  incorrect,  the  erorrs  or  omissions  should  be 
suggested  in  this  court,  and  a  certiorari  moved  to  bring  up 
a  correct  record.  18  How.  (U.  S.)  530.  When  the  clerk's 
certificate  to  the  transcript  is,  in  point  of  fact,  not  true,  the 
remedy  is  by  certiorari  to  supply  deficiencies.  Waite,  C.  J., 
108  U.  S.  30.  In  short,  this  writ  is  properly  used  by  this 
court  to  get  before  it  the  record  of  the  court  below,  as  it  in 
fact  exists,  no  matter  what  the  character  of  the  defect  in  the 


Legal   Aphorisms.  35 

transcript  as  certified  in  the  first   instance  here.    State  v. 
Tingler  (W.  Va.)  9  S.  E.  935. 

Where  in  the  case  of  Williams  v.  Ewart  {2  S.  E.  888), 
an  action  of  ejectment,  a  bill  of  exceptions  was  headed  Wil- 
liams ('(  al  V.  Ewart,  Green,  J.,  says:  "That  if  a  suggestion 
had  been  made  that  this  bill  of  exceptions  was  not  a  part  of 
the  record,  but  was  a  bill  of  exceptions  in  some  other  case, 
and  it  had  been  at  all  important,  he  had  no  doubt  but  that 
the  court  would  have  issued  a  writ  of  certiorari  to  the  clerk 
of  the  court  below  to  ascertain  whether  there  was  any  other 
ejectment  suit  pending  in  the  court  below,  styled  Williams 
et  al  V,  Ewart,  but  in  that  case  it  was  abundantly  shown  by 
the  pleadings  and  entries  of  orders  copied  in  the  record  who 
were  the  parties  to  the  cause. 

Chancery  Practice  and  Pleading. 
When    suit    commenced    against    parties  brought  in  by 
amended  bill.     2  Rob.  (old)  Pr.  253-4. 

Subpoena  or  Summons. 

When  a  party  is  charged  in  a  bill  in  the  capacity  in 
which  he  is  liable,  as  executor,  etc.,  it  is  not  ground  of  de- 
murrer, that  the  subpoena  was  issued  to  him  generally,  not 
stating  the  capacity  in  which  he  is  sued,  Walton  v.  Herbert, 
3  Green  Chy.  (X.  J.)  73,  1  Dan.  Chy.  Pr.  441,  note,  and 
so  where  the  defendant  was  described  in  process  generally, 
he  might  be  declared  against  as  administrator,  the  object  of 
the  writ  being  merely  to  bring  him  into  court.  Watson  v. 
Pelling  6  Moore  66,  S.  C.  3  B.  &  B.  4.  1  Chitty  PI.  284.  See 
Writ. 

Bill  with  (l.mble  aspect.    91  Va.  32;  4  Paige  537. 


36  Legal    Aphorisms. 

Variance  between  allegations  and  proofs.  1  am  not 
aware,  thongh  it  may  be,  that  there  is  a  different  rnle  m 
equity  from  that  which  prevails  at  law  in  relation  to  a  va- 
riance between  pleadings  and  proofs.  Marcy,  J.,  in  Harris 
V.  Knickerbocker,  5  Wend.  652.  Eelief  will  not  be  granted 
en  a  case  proved,  which  is  materially  different  from  the  case 
stated  in  the  bill.  Whatever  the  prayer,  the  relief  granted 
must  be  consistent,  or  at  least  not  inconsistent,  with  the  case 
luade  by  the  bill.  A  different  rule  would  be  attended  often- 
times with  surprise  and  prejudice.  30  Gratt.  655.  In  a 
court  of  equity,  as  well  as  in  a  court  of  law,  the  allegations 
and  the  proofs  .nust  agree.  A  recovery  will  not  be  allowed 
upon  a  case,  although  proved,  which  differs  essentially  from 
that  alleged  in  the  bill.  8  Leigh  354;  5  Rand.  543 ;  3  Rand. 
504;  4  Rand.  104;  84  Va.  717;  95  Va.  375. 

Exhibits  arc  a  part  of  the  bill ;  76  Va.  770 ;  81  Va.  422, 
and  for  want  of  exhibits  made  part  of  the  bill  a  demurrer 
will  lie.  5  Leigh  432.  Objections  to  reading,  when  filed 
with  a  deposition.     2  Gratt.  251. 

How  to  i3roceed  to  introduce  viva  voce  evidence  at  the 
iiearing  to  prove  exhibits. — ^Where  a  party  intends  to  pro- 
duce viva  voce  testimony  in  court,  upon  the  hearing  of  a 
cause,  which  is  sometimes  done  (but  without  a  cross  exami- 
nation) to  prove  the  execution  of  deeds,  and  the  handwriting 
of  letters,  or  the  signatures  thereto,  and  the  like,  he  should 
apply  before  that  time  for  an  order  for  that  purpose,  upon 
an  affidavit,  giving  a  proper  description  of  what  is  intended 
to  be  proved,  as  well  as  notice  to  the  adverse  party  of  the 
motion.    4  II.  &  IL  441 ;  2  II.  &  M.  128. 


Legal   Aphorisms.  37 

Fa  riles. 

Although  not  correctly  named  in  the  prayer  of  the  bill, 
when  served  with  process,  the  error  may  be  corrected  by 
amendment,  95  Va.  28.  In  the  case  of  Kanawha  Valley 
Bank  V.  Wilson,  35  W.  Ya.  36,  S.  C.  13,  S.  E.  58,  after  set- 
ting ont  a  form  of  a  bill  in  which  the  names  of  the  defend- 
ants were  not  set  ont  in  the  prayer,  the  court  said:  '*It  will 
thus  be  seen  that  the  briefest  and  most  modernized  form  of  a 
bill  requires  parties  defendant  to  be  set  out  in  the  body  of  the 
bill,  as  those  having  an  interest  in  the  subject  matter  and 
against  whom  relief  is  prayed."  In  Virginia  the  writ  of  suh 
poena  is  not  only  issued  as  matter  of  course,  but  the  issuing 
it  usually  jjrecedes  the  filing  the  bill.  Here  a  formal  prayer 
in  the  bill  cannot  be  necessary  to  entitle  the  plaintiff  to  that 
process ;  and  it  would  be  strange  indeed  if  these  only  should 
be  regarded  as  defendants,  against  whom  there  is  an  unneces- 
sary prayer  for  process.  It  may  be  admitted  that  every  bill 
should  clearly  designate  some  particular  persons  as  defend- 
ants, and  that  ordinarily  the  prayer  for  process  selects,  from 
the  persons  named  in  the  bill,  those  who  are  made  defend- 
ants. But  this  particular  mode  of  designation  cannot  be  in- 
dispensable. It  must  be  sufficient  for  the  bill  to  state  which 
of  the  persons  named  in  it  are  made  defendants.  In  Elmer- 
dorf  and  wife  v.  Delancey,  etc.  1  Ilopkin's  Ch.  Rep.  555,  no 
persons  were  designated  as  defendants,  either  by  a  prayer  of 
process  against  them,  or  by  any  statement  that  they  were 
impleaded  as  defendants.  The  l)ill  was  adjudged  bad  on 
Special  Demurrer  assigniing  this  cause,  but  the  complainants 
had  leave  to  amend  on  the  usual  terms.  2  Eob.  (old)  Pr.  290. 

When  suit  commenced  as  to  new  parties  brought  in  by 
amended  bill.    2  Rob.  (old)  Br.  253-4. 


38  Legal    Aphorisms, 

Motion  suj^iDorted  by  affidavits  for,  and  rule  on  plaintiffs 
to  show  cause  wny  certain  persons  should  not  be  made  parties, 
13  Graft.  38;  and  motion  based  simply  on  the  pleadings  and 
rule  granted,  3  Leigh  599. 

Prayer  for  Relief. 

"Prayer  for  general  relief  is  an  Indian  rubber  prayer.  • 
T..um])kin,  J.  14  Ga.  525. 

In  the  case  of  the  Methodist  Church,  &c.  vs.  Jaques,  &c. 
1  Johns.  Chy.  Rep.  65,  the  bill  contained  the  general  requisi- 
ti(>n  "that  the  defendants  may  full  answer  make  to  all  and 
singular  the  premises,  fully  and  particularly,  as  though  the 
same  wore  repeated  and  they  specially  interrogated."  This 
was  considered  sufficient  to  call  for  a  full  and  frank  dis- 
closure of  the  whole  subject  matter  of  the  bill.  2  Rob.  (old) 
Pr.  291.     But  see  76  Va.  592;  7  V.  L.  R.  327. 

The  prayer  in  a  bill  of  review  may  be  that  the  decrees 
and  proceedings  in  said  suit  may  be  reviewed,  reversed  and 
set  aside,  and  the  plaintiffs  restored  to  their  rights,  adding 
prayer  for  general  relief,  26  Graft.  523,  and  in  a  petition  or 
original  bill  filed  to  reopen  the  original  decree  in  a  case 
where  the  decree  had  been  rendered  without  appearance,  it 
may  be  "that  the  decrees  and  proceedings  might  be  re-opened, 
reconsidered  and  reversed,  with  prayer  for  general  relief.  18 
Graft.  371. 

(2)  Judge  Story,  in  speaking  of  that  part  of  the  bill 
which  contains  the  prayer  for  relief,  says :  "The  usual  course 
is  for  the  plaintiff  in  this  part  of  his  bill  to  make  a  special 
prayer  for  the  particular  relief  to  which  he  thinks  himself 
entitled,  and  then  to  conclude  with  a  prayer  of  general  relief 
at  the  discretion  of  the  court.     The  latter  can  never  be  ])rop- 


Legal    Aphorisms.  39 

erly  and  safely  omitted ;  because  if  the  plaintiff  shall  mis- 
take the  relief,  to  which  he  is  entitled,  in  his  special  prayer, 
the  court  mav  yet  afford  him  the  relief  to  which  he  has  a 
right  under  the  prayer  of  general  relief,  provided  it  is  such 
relief  as  is  agreeable  to  the  case  made  by  the  bill,  Story's  Eq. 
Plead.,  sec.  40. 

Again,  ''But,  even  when  a  prayer  of  general  relief  is  suffi- 
cient, the  special  relief  prayed  at  the  bar  must  essentially 
depend  upon  the  proper  frame  and  structure  of  the  bill ;  for 
the  court  will  e-rant  such  relief  only  as  the  ease  stated  will 
justify;  and  will  not  ordinarily  be  so  indulgent  as  to  permit 
a  bill  framed  for  one  purpose  to  answer  another,  especially  if 
the  defendant  may  be  surprised  or  prejudiced  thereby.  Thus 
if  a  bill  is  brought  for  an  annuity,  or  rent  charge  of  ten 
pounds  per  annum,  left  under  a  will,  and  the  counsel  for  the 
plaintiff  pray  at  the  bar,  that  they  may  drop  the  demand  of 
the  annuity  or  rent  charge,  and  insist  upon  the  land  itself, 
out  of  which  the  annuity  or  rent  charge  issues,  the  court  will 
not  grant  it,  for  it  is  not  agreeable  to  the  ease  made  by  the 
hill.    Id.  sec.  42. 

And  the  relief  which  may  be  supplied  under  the  general 
prayer  must  not  only  be  consistent  with  the  case  made  by 
the  bill,  but  also  with  the  relief  specially  prayed.  1  Dan.  C'h. 
Prac.  (4  Am.  Ed.)  378,  379  and  notes.  Under  the  general 
prayer,  the  plaintiff  is  entitled  to  any  relief  which  tite 
material  facts  and  circumstances  put  in  issue  by  the  bill  will 
sustain ;  but  it  must  be  consistent  with  the  case  made,  and  if 
inconsistent  with  it,  and  with  the  specific  relief  prayed,  will 
always  be  refused.  Parker,  .1..  in  James  v.  Bird's  Adm'r,  8 
Leigh  510,  513. 


40  Legal   Aphorisms. 

In  Hiem  v.  Mill,  13  Ves.  R  114  (cited  in  1  Dan.  Ch. 
Prac.  SIS),  Lord  Elden  said:  '^The  rule  is,  that  if  the  bill 
contains  charges,  putting  facts  in  issue  that  are  material,  the 
plaintiff  is  entitled  to  the  relief  ivhich  those  fads  ivill  sus- 
tain, under  the  general  prayer ;  but  he  cannot  desert  the  spe- 
cific relief  prayed,  and  under  the  general  prayer  ask  specific 
relief  of  another  description,  unless  the  facts  and  circum- 
stances charged  hy  the  hill  will,  consistently  with  the  rules 
of  the  court,  maintain  that  relief. 

The  test  of  the  relief  to  be  granted  is  not  the  case  proved, 
but  the  case  stated  in  the  hill  upon  which  the  issue  is  made 
up.  75  Va.  351.  Proving  a  case  not  made  by  or  within  the 
pleadings,  does  not  authorize  a  court,  except  by  consent,  to 
pass  upon  such  extraneous  matter.    95  Va.  24. 

Form  of  prayer  in  bill  filed  against  administrator  and 
heirs  for  sale  of  decedent's  land  for  debts.    27  Gratt.  231. 

Ceoss-Bill. 

And,  according  to  the  settled  practice,  a  cross-bill  is  now 
dispensed  with  in  cases  where  it  was  once  uniformly  re- 
quired. The  court  will,  some  times  of  its  motion,  direct  a 
cross-bill  to  be  filed  when  it  is  of  opinion  it  is  demanded  by 
the  purposes  of  justice.    27  Gratt.  574. 

9 

Petition. 
Petition  to  rehear  decree  treated  as  a  cross-bill,  23  Gratt. 
842— a  bill  of  review,  25  Gratt.  422 ;  20  S.  E.  899.  Form 
of  prayer  for  such  petition  to  be  treated  as  a  bill  of  review : 
"And  if  the  court  should  be  of  opinion  that  a  bill  of  review 
is  the  projjer  mode  of  proceeding,  he  asks  that  his  petition 
may  be  so  treated,  and  that  he  may  be  permitted  to  amend 


Legal   Aphorisms.  41 

it  and  luaki'  all  proper  parties,  and  have  all  and  every  relief 
to  whieh  he  might  be  entitled  under  any  form  of  pleading." 
The  petition,  in  his  own  right,  was  brought  on  by  the 
decree  as  projjerly  tiled  and  matured ;  and  this  was  equiva- 
lent to  leave  of  the  court  to  file  it,  and  in  effect  overruled, 
and  properly,  we  think,  the  objection  of  the  defendant  to  its 
being  filed.    93  Va.  247. 

Bill  of  Review. 
Substance  of  final  decree  on  25  Gratt.  163  and  165. 
Safest  in  every  case  to  have  leave  of  the  court  to  file.    20 
S.  E.  899. 

An  Amended  Bill. 

An  amended  bill  is  in  the  nature  of  an  amendment  of 
the  original  bill,  and  must  be  read  with  it,  and  the  two  must 
be  regarded  as  one  bill ;  the  two  are  regarded  as  constituting 
one  bill.     87  Va.  251  and  cases  cited. 

It  is  the  commencement  of  the  suit  as  to  new  parties 
brought  in  by  it,  6  Pet.  61;  2  Rob.  (old)  Pr.  253-4;  58  Cal. 
151;  34  'Neh.  367;  S.  C.  51  K  W.  969.  See  Roses  notes  to 
Miller  v.  Mclnges,  6  Pet.  60. 

Demueeek. 
Form  of  Dcmuvrev. — Where  a  defendant  had  tiled  a  de- 
murrer and  answer  to  an  original  and  amended  bill  in  which 
before  proceeding  to  answer,  he  "demurs  to  said  bills,  and 
says  they  are  not  sufficient  in  equity  to  entitle  the  plaintiffs 
to  the  relief  which  they  seek  or  to  any  relief  in  this  court." 
But  if  respondent  be  held  bound  to  answer,  he  proceeds  to 
answer  the  same  accordin£>lv,  the  court  sav:       *     *     *     it 


42  Legal    Aphorisms. 

seems  to  be  usual  with  us  to  embody  the  demurrer  in  the 
answer,  in  general  language,  as  was  done  in  this  case ;  and 
that  practice  seems  to  be  recognized,  if  it  be  not  expressly 
authorized,  by  the  code  *  *  *  which  says  that  ''the 
form  of  a  demurrer  or  joinder  shall  be:  "The  defendant  (or 
plaintiff)  says  that  the  declaration  (or  pleas)  is  not  (or  is) 
sufficient  in  law."  26  Gratt.  293-296.  In  the  form  prescribed 
by  the  statute  is  sufficient.   25  Gratt.  643 ;  80  Va.  463. 

Demurrer  for  want  of  exhibits  made  part  of  the  bill,  well 
taken.    5  Leigh.  432. 

1^0  demurrer  to  plea  or  answer,  6  Va.  L.  Reg.  184,  the 
proper  practice  is  to  except,  98  Va.  390. 

DiSCLAIMEE. 

A  defendant  may  demur  to  one  part  of  a  bill,  plead  to 
another  part,  disclaim  as  to  another,  and  answer  as  to  an- 
other. 2  Mad.  Chy.  260.  Or  he  may  do  either  as  to  the 
whole  bill. 

Though  a  disclaimer  is,  in  substance,  distinct  from  an 
answer,  yet  it  is,  in  point  of  form,  an  answer,  containing 
simply  an  assertion  that  the  defendant  disclaims  all  right 
and  title  to  the  matter  in  demand;  and  in  order  to  entitle 
the  defendant  to  be  dismissed  with  costs,  the  disclaimer 
should  state  that  the  defendant  "does  not  and  never  did 
claim,  and  that  he  disclaims  all  right  and  title  in  the  subject 
r-oiitter  of  the  suit."  Lord  Redesdale  observes,  that  in  some 
instances,  from  the  nature  of  the  case,  a  simple  disclaimer 
may  perhaps  be  sufficient,  but  that  the  forms  given  in  the 
books  of  practice  are  all  of  an  answer  and  disclaimer.  1  Dan. 
Chy.  (6  Am.  Ed.)  TOT. 


Legal   Aphorisms.  43 

GliAEKAL   Form   of   DlSCLAIMEPt. 

Style  of  the  cause,  as  in  an  answer,  then — 

The  answer  and  disclaimer  of  A.  B.,  the  above  named 
defendant  ("or  one  of  the  above  named  defendants),  to  the 
bill  of  complaint  of  the  above  named  plaintiff,  or  the  joint 
and  several  answer  and  disclaimer  of  A.  B.  and  C  D.  the  (or, 
two  of  the)  above-named  defendants,  to  the  bill  of  complaint 
of  the  above-named  plaintiff.  In  answer  to  the  said  bill,  I,  A. 
B.  (or  we,  A.  B.  and  C.  D.)  say  as  follows: 

I  (or  we)  have  not,  and  do  not  claim,  and  never  had  or 
claimed  to  have,  any  right  or  interest  in  any  of  the  matters 
in  question  in  this  suit,  and  I  (or  we)  disclaim  all  right, 
title,  and  interest,  legal  and  equitable  in  the  said  matters ; 
and  I  (or  we)  say  that  if  I  (or  we)  had  been  applied  to  by 
the  plaintiff  before  the  filing  of  his  bill,  I  (or  we)  should 
have  disclaimed  all  such  right,  title,  and  interest ;  and  1  (or 
we)  submit  that  the  bill  ought  to  be  dismissed  as  against  me 
(or  us)  wuth  costs. 

The  disclaimer  should  be  signed  by  the  defendant,  in 
addition  to  being  signed  by  counsel.  3  Dan,  Chy,  Pr,  (6  Am. 
Ed,)  2113,  note.   And  should  be  sworn  to,    2  Mad.  Chy,  259. 

In  Oelrichs  v.  Williams,  15  Wall  511,  it  is  said:  Where 
there  is  a  complete  remedy  at  law  a  bill  in  equity  must  be  dis- 
missed. This  objection  is  regarded  as  jurisdictional,  and 
may  be  enforced  by  the  court  sua  sponic,  though  not  raised 
by  the  pleadings,  nor  suggested  by  counsel.  94  Va.  101.  See, 
also,  4  Rand.  78". 

Answer. 

^lay  not  be  filed  in  the  clerk's  office,  except  by  ordt-r  <>f 
the  court,  after  cause  is  on  court  docket.     14  Gratt.  130. 


44  Legal   Aphorisms. 

When  prepared  and  respondent  dies  before  it  is  filed.  7 
Leigh.  273. 

Answer  of  one  defendant  referred  to  and  adopted  by  an- 
other defendant  in  his  answer.    11  Leigh.  142;  Idem.  347;/ 
95  Va.  35. 

Answer  of  a  corporation,  see  Corporation. 

Answer  and  plea  cannot  be  demurred  to,  nor  a  plea  filed 
to  an  answer.  Answer  must  be  excepted  to,  in  the  stead  of 
demurring,  and  set  down  for  argument.  6  Va.  L.  Reg.  184; 
98  Va.  390,  387.  "When  the  defendant  filed  his  answer,  if 
the  complainant  deemed  it  sufficient,  he  should  have  taken 
issue  upon  it  by  general  replication ;  or,  if  he  chose  to  incur 
the  hazard  of  so  doing,  he  might  have  had  the  cause  set  for 
hearing  upon  the  bill  and  answer  without  replication ;  or,  if 
there  was  new  matter  in  the  answer  making  it  proper,  he 
might  have  filed  a  supplemental  bill.  One  or  the  other  of 
these  methods  he  was  bound  to  pursue.  He  had  no  right  to 
file  a  plea  to  the  answer."  33  Graft.  458 — or  he  might,  if  he 
considered  it  insufficient,  have  excepted  to  the  answer  and 
had  it  set  down  for  argument,  or  moved  to  have  the  part  ol 
the  bill,  to  which  the  answer  was  not  responsive,  taken  for 
confessed.  (2  H.  &  M.  18.)  V.  C.  3276;  6  Va.  L.  Reg.  184. 
"If  he  had  filed  a  general  replication,  it  would  have  been  a 
general  denial  of  the  truth  of  the  defendant's  answer,  and  of 
the  sufficiency  of  the  matter  alleged  in  it  to  bar  the  com- 
jDlainant's  suit,  and  an  assertion  of  the  truth  and  sufficiency 
of  the  bill:  Story's  Eq.  PL,  sec.  878."  33  Graft.  458;  and 
if  he  excepts  to  the  answer  for  insufficiency,  ''he  plants  him- 
self upon  the  proposition  that,  if  the  averments  of  the  answer 
are  sustained  by  proof,  they  constitute  no  defence  to  the 
plaintiff's  demand.   98  Va.  391. 


Legal    AriioRiSMS.  45 

Form  of  Exceptions  to  an  Answer. 

lu  the Court  for County : 

Exceptions  of  the  plaintiff,  A.  B.,  to  the  answer  of  the 
defendant,  C.  D. 

1st.  Because,  etc. 

2nd.  Because,  etc. 

In  uU  of  which  particulars  the  said  plaintiff  excepts  to 
the  answer  of  the  said  defendant  as  evasive,  imperfect  and 
insufficient,  and  humbly  prays  that  the  said  defendant  may 
be  compelled  to  put  in  a  full  and  sufficient  answer  to  said 
bill.  ,  Pq. 

Answer  is  evidence  in  ones  own  behalf  and  against  the 
plaintiff  only  so  far  as  its  statements  are  responsive  to  the 
bill  and  based  on  facts  within  his  own  knowledge.  Clark's 
Exr.  V.  Van  lUemsdyk,  0  Cranch  R.  153 ;  33  Gratt.  381. 

When  a  defendant,  in  his  answer,  states  that  he  neither 
admits  or  denies  a  fact,  having  no  personal  knowledge  of  it, 
and  calls  for  full  proof  touching  the  same,  plaintiff  is  put 
ujx)n  proof.     11  Gratt,  568. 

When  plaintiff,  after  answer  under  oath,  dismisses  his 
bill  and  files  a  second,  in  which  he  waives  answer  under  oath, 
former  answer  remains  evidence  and  must  be  overcome  by 
two  witnesses,  &c.    105  111.  272. 

As  evidence,  see  Evidences  in  Chancery  Cause,  infra. 

Jiijnnia. — It  is  not  now  the  practice  to  i-equire  an  answer 
from  an  infant.  1  Dan.  Chy.  ( ()  Am.  Ed.)  1G!> ;  cxcc'i^t  when 
required  by  statute,  but  he  may  file  a  voluntary  answer  set- 
ting up  anything  which  he  meant  to  prove  by  way  of  defence. 
iDan.  Ch.  (6  Am.  Ed.)  169. 


46  Legal   Aphorisms. 

Replication. 
No  special  replication  in  equity  practice,  amendment  of 
the  bill  takes  its  place.  If  the  complainant  conceives,  from 
any  matter  offered  by  the  plea  or  answer,  that  his  bill  is  not 
properly  adapted  to  his  case,  he  may  obtain  leave  to  amend 
his  bill  and  suit  it  to  the  defence,  or  he  may  file  a  supple- 
mental bill.  2  Rob.  (old)  Pr.  315.  A  general  replication 
which  is  now  alone  used  in  equity,  is  a  general  denial  of  the 
truth  of  the  defendant's  plea  or  answer.  ''If  he  had  filed  a 
general  replication,  it  would  have  been  a  general  denial  of 
the  truth  of  the  defendant's  answer,  and  of  the  siifficiency 
of  the  matter  alleged  in  it  to  bar  the  complainant's  suit  and 
an  assertion  of  the  truth  and  sufficiency  of  the  bill.  Story's 
Eq.  PI.  sec.  87a"   33  Gratt.  458;  100  Va.  133. 

Evidence. 

Examination  of  witnesses  at  the  hearing  to  prove  execu- 
tion of  exhibits,  etc.  2  Rob.  (old)  Pr.  351 ;  3  Greenl.  Ev. 
sees.  309,  310;  Sand's  Suit  in  Eq.  495,  682.  See,  also,  25 
Gratt.  560;  7  Gratt.  350. 

No  admissions  in  an  answer  can  under  any  circumstances 
lay  the  foundation  for  relief  under  any  specific  head  of 
equity,  unless  it  be  substantially  set  forth  in  the  bill.  11  Pet. 
249. 

Variance  between  allegations  and  proofs,  see  Bill,  i7ifi'a. 

Decree,  see  Decree. 

Consent  of  infants  to  a  decree.    8  Va.  L.  Reg.  684. 

Decree  based  on  constructive  process.    2  Va.  L.  Reg.  48. 

When  court  will  decree  against  plaintiif  in  favor  of  the 
defendant.    20  Gratt.  394. 


Legal   Aphorisms.  47 

"Directing  payment  of  money  to  legatees  for  life  upon 
their  giving  security  for  its  return  at  their  death.  31  Gratt. 
535. 

Giving  Time  to  Redeem. — It  is  the  invariable  rule  to 
give  such  clay  in  suits  by  mortgagee  against  the  mortgagor  to 
foreclose  a  mortgage  (Clark  v.  Reyburn,  8  Wall.  322),  and, 
also,  in  suits  by  vendor  against  vendee  to  enforce  his  lien  for 
purchase  money,  whether  such  lien  be  express  or  implied.  29 
Gratt.  355.  In  this  case  it  was  held  to  be  error  to  order  a  re- 
sale without  giving  the  purchaser  at  a  judicial  sale  a  day  to 
redeem. 

An  order  simply  dismissing  the  suit,  without  reservation, 
is  a  determination  on  the  merits,  and  so  is  a  bar  to  the  main- 
tenance of  a  second  suit  for  the  same  cause  of  action.  13 
Gratt.  183 ;  96  Va.  -451 ;  Contra,  Haldeman  v.  U.  S.  91  U.  S. 
584;  and  it  has  been  held  by  the  S.  Court  of  Appeals  of  Vir- 
ginia, that  an  order  dismissing  a  caveat,  when  not  on  the 
merits,  is  not  conclusive  of  the  controversy.  1  Call.  206 :  78 
Va.  618.  In  this  case  the  order  of  dismissal  was,  "By  con- 
sent of  parties  and  for  reasons  appearing  to  the  court,  ordered 
that  this  cause  be  dismissed." 

When  suit  is  dismissed  without  prejudice.  9  Va.  L.  Reg. 
880;  Id.  549. 

'^Dismissed  agi-eed."  5  Va.  L.  Reg.  33.  Mr.  Lile  con- 
cludes this  note  with  the  remark  that  ''whatever  may  be  the 
true  rule,  dismissed  agreed  are  dangerous  words  to  put  into 
an  order  in  Virginia,  if  the  controversy  is  not  finally  deter- 
mined." 

Form  of  decree  for  renting  lands  where  it  appears  prob- 
able that  the  rents  and  profits  will  pay  in  five  years.    32 


48  T..Brir.<,F     APHO-aiSMS. 

Graft.  125;  and  tlds  ilec-jnee  most  pareccde  deoce  for  sale 
wliere-  it  ap|!eais  prdbaMe  that  the-  iremt*  aitd  proifit*  will  pay 
im  five  veais.    S3  Va.  SL. 

Piw>f  &£  Tahas'  hj  e-shihitm^  aitidle  simiBar  te-  one  lost 
aoid  pp<>viini2  its-  value.  141  Mas&.  42. 

Check. 
Jmdige  Bmi&s:^  im  2S  Giratt.  17*),  says:  '^Bamk  ehedb,'' 

says  Mr.  Jinistiee  Swaymie,  ddliverimig'  tlie  ©pimio©  ©f  the 
SMpmHnae  Ccioart  ©f  tise  Umited  States  im  the  case  ©f  Mer- 
duamte*  Bank  t.  State  Baifilk^  10  WaE.  U.  S.  R  (5*M^  6D7,  "aire 
mot  feiills  ©df  eseinaiLae^  Iwnit  lyave  imaimy  ei  the-  pir«>perties-  »!>f  soeh 
©oiBimieireial  pap^r;  and  uniaiffiy  ©f  the  nnifes  ©€  the  law  mie-r- 
ehamts  aire  alike  ap^lieaMe  to  hoith.  Elaeh  is  fo'F  a  speififie 
gnEMiy  payable  im  jmmttj'.  Jm  lw)4th  eases  these  is-  a  dnnrer,  a 
dirawee  aimd  a  payee.  Witheniit  aeeeptaiDee^  m©  aetioaa  can  be 
nmaiiDitaiiiied  by  the  hfDl<ior  m^iSHgL  either  a^sainst  the  drawee. 
The  ehief  p6)i]iiits  of  dii^eveifiee  ase^  th^  a  ehe^  is  always 
drawm  ma.  a  bamik  @«-  bamker.  'S&  davs  oi.  sjraee-  are  allowed. 
The  drawer  is  mot  disehassed  bv  the  laehes  €xf  the  holdev-  im 
l»esesiit]oiu0nit  f oar  paynmoiit  Mnless  he  f^aoi  sheiw  that  he  has  six?- 
taimed  s^one  iEajmry  by  idiie  deiiaEBlt.  It  is  isst  (^oie  noEtil  p^y- 
LH  is  demandfd^  and  the  statunte  osf  HmitatitDiiBs  mans  <oiiJy 
for  that  tiioi&e.  It  is  bv  its  faee  the  apparopBiatitoan  of  so  maaeh 
imoc&e'v  of  the  drawer  ira  the  haiods  of  the  drawee  to  the  pay~ 
lELeiait  off  ami  admiitte'^  ^  " "' "—  ©f  iihe  drawer.  It  is  mot  meees- 
ssLry  ciuxt  the  drawee  vC  Oi  ti/uJi  shsnsM  have  fMmds  ira  the  hamd? 
of  r  "         A  ehe«k  iffl  smeh  ease  woQild  be  a  framed.    AE 

the   an  .fSv  btoth   Eii^slish   amd  Amifiviean^  hoM   that  a 


Legal   Apiioeisms.  49 

check  may  be  accepted,  though  acceptauce  is  not  usual."  And 
adds,  For  these  several  propositions  the  learned  justice  cites 
authorities. 

The  fact  that  one  instrument  is  drawn  upon  a  bank  and 
the  other  upon  an  individual,  can  make  no  difference  in  prin- 
ciple concerning  the  duty  of  the  holder;  what  will  be  due 
diligence  in  the  one  case  will,  I  think,  be  due  diligence  in  the 
other  (Mohawk  Bank  v.  Broderick,  13  Wend.  133)  ;  20 
Wend.  194,  and  the  question  of  laches  is  a  question  of  law 
where  there  is  no  dispute  as  to  the  facts.    13  Wend,  133. 

Accepting  check  on  which  is  written  "in  full  of  account." 
41  S.  E.  R  6;  119  X.  Ca.  34;  25  S.  E.  E.  70§;  56  Am.  St. 
E.  G56;  29  S.  E.  E.  943;  36  Idem.  36;  91  Va.  284. 

Child. 
Generally  a  child  will  be  considered  in  being,  from  con- 
ception to  the  time  of  its  birth,  in  all  cases  where  it  will  be 
for  the  benefit  of  such  child  to  be  so  considered.  15  Pick.  257- 

Chose  in  Action. 
The  term  chose  in  action  is  used  in  contradistinction  to 
chose  in  possession.  It  includes  all  rights  to  personal  jjrop- 
erty  not  in  possession  whifh  may  be  enforced  by  action;  and 
it  makes  no  difference  whether  the  o\vner  has  been  deprived 
of  his  property  by  the  tortious  act  of  another,  or  by  his 
breach  of  a  contract,  express  or  implied.  In  both  cases,  the 
debt  or  damages  of  the  owner  is  "a  thing  in  action."  4  Denio. 
82,  citing  2  Kent  351 ;  1  Chitty  PI.  99  note,  p. ;  Tomlin  L. 
D.,  Chose ;  5  Price  217  and  1 ;  Lilly  Ab.  378. 


50  Legal    Aphoeisms. 

Chukches. 
Suits    over    property     and    pastorates,     jurisdiction   of 
equity.    55  L.  E.  A.  241;  29  Idem.  476;  32  Idem.  32;  37 
K  J.  Eq.  6  and  note;  68  Am.  St.  E.  852 ;  45  S.  E.  E.  753 ; 
5  Am.  E.  415. 

Collateral  Securities. 

This  being  a  proceeding  to  enforce  collateral  securities, 
it  was  not  incumbent  on  the  creditor  to  pursue  his  remedy  at 
law  on  the  bills,  but  his  remedy  for  that  purpose  was  pecul- 
iarly in  a  court  of  equity,  which  only  could  enforce  his 
securities.  And  he  might  have  pursued  his  remedy  in  both 
forums  at  the  same  time,  though  he  could  have  only  one  sat- 
isfaction.   29  Gratt.  681. 

When  may  be  sold.   22  Gratt.  262. 

Commissioner  of  Sale.   See  Judicial  Sales. 

Common  Law. 
As  the  Common  Law  of  England  was,  and  is,  the  common 
law  of  this  country,  and  as  an  appeal  from  the  courts  of  Vir- 
ginia lay  to  a  tribunal  in  England,  which  would  be  governed 
by  the  decisions  of  the  courts,  the  decisions  of  those  courts, 
made  before  the  Eevolution,  have  all  the  claims  to  authority, 
which  is  allowed  to  appellate  courts.  Chief  Justice  Marshall, 
1  Brock.  140. 

The  argument  of  counsel  *  *  *  that  the  doctrine 
*  *  is  that  which  had  been  settled  in  England  at  the 
time  of  the  establishment  of  our  chancery  court  and  that  we 
must  therefore  look  to  the  English  decisions  prior  to  that 
time  to  ascertain  the  law  upon  the  subject,  is,  I  think,  unten- 
able.    The  subsequent  English  decisions  are,  of  course,  not 


Legal    Apiiokisms.  51 

binding  upon  us ;  but  they  are  entitled  to  great  respect.  Mon- 
cure,  J.  15  Gratt.  374.  The  decisions  of  those  courts,  made 
before  the  Revolution,  have  all  that  claim  to  authority,  which 
is  allowed  to  appellate  court.  Those  made  since  the  Revolu- 
tion lose  that  title  to  authority,  which  was  conferred  by  the 
appellate  character  of  the  tribunal  which  made  them,  and  can 
only  be  considered  as  the  opinions  of  men  distinguished  for 
their  talents  and  learning,  expounding  a  rule,  by  which  this 
country,  as  well  as  theirs,  professes  to  be  governed.  Chief 
Justice  Marshall,  1  Brock  141, 

By  a  long  course  of  practice,  which  must  now  be  consid- 
ered the  common  law  of  the  State,  4  Mete.  227 ;  2  Rob,  Pr. 
374;  82  Va,  15,  It  has  been  the  practice  in  Virginia  in 
mere  matters  of  practice,  to  respect  a  usage  not  conflicting 
with  any  statute  nor  any  great  principle.  Gilm,  286,  1  Rob, 
(old)  Pr.  261 ;  3  Rand.  307. 

Common  Cakriers, 

Liability  for  loss  of  apparel,  2  Rob,  Pr.  527;  7  Hill  47. 
What  is  apparel?  2  Rob,  Pr.  527. 

Exhibiting  article  similar  to  one  lost  and  proving  its 
value.     141  Mass.  42. 

]\Ieasure  of  damages  when  goods  are  never  delivered.  95 
Mass.  385. 

Measure  of  damages  when  delivery  of  goods  is  delayed. 
95  Mass.  38-4,  385. 

Form  of  declaration  against  on  contract  limiting  liability; 
contract  price  may  be  given  in  evidence  in  reduction  of  dam- 
ages.   1  Chitty  PI.  (7  Am,  Ed.)  347. 

Preferable  form  of  action  for  enforcin<r  liabilitv.  3 
Wend.  158;  If)  Wend.  537. 


52  Legal   Aphoeisms. 

Conveyances. 

In  conveyances  advisable  to  insert  a  clause  by  which  the 
grantor  shall  expressly  assign  to  the  grantee  the  benefit  of 
any  covenants  of  title  held  by  him  of  his  predecessor.  7  Va. 
L.  Eeg.  69. 

Compromise. 

Admissions  of  a  fact  pending  negotiations  for  a  compro- 
mise are  evidence.  16  Wend.  644,  where  numerous  instances 
are  cited ;  but  proposals  made  while  a  compromise  is  on  the 
carpet  do  not  bind,  but  conversations  in  which  a  fact  is  dis- 
closed, may  be  added  to  prove  it.  16  Wend.  644;  6  Wend. 
277  and  note. 

Conditions  Precedent. 
Sundry  excuses  for  non-performance  of  conditions  prece- 
dent given.     1  Chitty  (7  Am.  Ed.)  358. 

Confessions. 

Confessions  of  one  of  several  persons  jointly  bound  are, 
when  parol  evidence  is  admissible,  competent  and  prima 
facie  evidence  against  the  others.    4  Eand.  324. 

Confidential  Relations. 

Enumeration  of  various  parties  who  stand  in  confidential 
relations  to  each  other.     25  Gratt.  40. 

Consent. 
Truly  the  court  could  do,  by  consent  of  all  the  parties, 
what  it  would  have  the  right  to  do  upon  the  motion  of  any 
one  of  the  parties.    92  Va.  659. 


Legal    Aphorisms.  53 

Consideration. — See  Premises. 

As  to  what  will  be  a  sufficient  consideration  to  support 
a  promise,  Sergeant  Williams  says:  "Perhaps  the  best  rule 
is  that  any  damage,  or  any  suspension  or  forbearance  of  his 
right,  or  any  possibility  of  a  loss  occasioned  to  the  party  by 
the  promise  of  another,  is  a  sufficient  consideration  for  such 
a  promise,  and  will  make  it  binding,  although  no  actual 
benefit  accrues  to  the  party  undertaking.  1  Sand.  211  c.  note 
2  (a)  ;  6  Wend.  243.  And  any  gain  to  the  promisor  or  loss 
to  the  promisee,  however  trifling,  is  a  sufficient  consideration 
to  support  an  express  promise.  Chitty  on  Cont.  (3  Am.  Ed.) 
7  and  notes;  2  Kent's  Com.  (3  Ed.)  465;  Knob  v.  Lindsay, 
5  Ohio  K.  471 ;  Thesbald  on  Pr.  and  S.  6,  7,  22  Mass.  384. 

The  law  is  exceedingly  strict  in  requiring  that  the  con- 
sideration of  a  contract  shall  be  truly  set  forth  in  a  declara- 
tion for  the  breach  of  it.  1  Chitty  PL  (6  Am.  Ed.)  326  et 
seq.;  1  Saund  PI.  and  Ev.  (2  Ed.)  187-189;  1  Greenl.  Ev., 
sees.  58,  68;  Whitney  v.  Marks,  1  Kerr's  (X.  B.)  Rep.  179, 
69  Mass.  71. 

A  precedent  moral  obligation,  not  capable  of  creating  an 
original  cause  of  action,  will  not  support  an  express  promise, 
or,  perhaps,  as  more  correctly  stated,  an  express  promise  can- 
not be  supported  by  a  consideration  from  which  the  law  could 
not  imply  a  promise,  except  where  the.  express  promise  does 
away  with  a  legal  suspension  or  bar  of  right  of  action,  which, 
but  for  such  suspension  or  bar,  would  be  valid.  Beaumont  v. 
Eeeve,  8  Adolp.  k  Ell.  486,  cited  95  Va.  788.  See,  also,  3 
Pick.  207. 

When  part  of  the  consideration  is  void : 

In  declaring  in  an  action  brought  after  such  new  contract 


54  Legal   Aphorisms. 

the  plaintiff  may  set  the  original  cause  of  action  and  in  his 
replication  aver  the  new  promise,  but  cannot  avail  himself 
of  it  under  general  pleadings.     1  Hill  532;  3  Wend.  135. 

If  any  part  of  an  agreement  is  valid,  it  will  avail  pro 
tanto,  though  another  part  of  it  may  be  prohibited  by  statute ; 
provided  the  statute  does  not,  either  expressly  or  by  necessary 
implication,  render  the  whole  void;  and  provided,  further- 
more, that  the  sound  part  can  be  separated  from  the  unsound, 
and  be  enforced  without  injustice  to  the  defendant.  See 
opinion  of  Gibbs,  E.  J.,  in  Doc  v.  Pitcher,  6  Taunt.  369 ; 
Monys  v.  Leake,  8  T.  R.  411 ;  Gaskell  v.  King,  11  East.  165 ; 
Wigg  V.  Shuttleworth,  13  East.  87 ;  Howe  v.  Synge,  13  East. 
410 ;  Greenwood  v.  Bishop  of  London,  5  Taunt.  727.  In  the 
application  of  this  doctrine  Chancellor  Kent  says:  "If  the 
part  which  is  good  depends  upon  that  which  is  bad,  the  whole 
is  void ;  and  so  I  take  the  rule  to  be,  if  any  part  of  the  con- 
sideration be  malum  in  se,  or  the  good  and  the  void  consid- 
eration be  so  mixed,  or  the  contract  so  entire,  that  there  can 
be  no  apportionment.  2  Kent  Com.  (6  Ed.)  407.  The  ap- 
j)lication  of  this  doctrine  to  cases  affected  by  the  statute  of 
frauds,  will  be  found  in  Mayfield  v.  Wadsley,  3  Barn.  & 
Cres.  357;  Ex  parte  Littlejohn,  3  Mont.  Deac.  &  De  Gex, 
1S2;  Wood  V.  Benson,  before  cited  (2  Compt.  &  Jerv.  94  and 
2,  Lyrw.  93) — where  one  part  of  the  agTeement  was  held  to 
be  separable  from  the  other;  and  in  Cooke  v.  Tombs,  2  Kw^i. 
420;  Lea  v.  Barber,  2  Anst.  425,  note;  Mechelen  v.  Wallace, 
7  Adolph  &  Ellis,  49 ;  Vaughan  v.  Hancock,  3  Man.  Grang. 
&  Scott,  766 ;  Irvine  v.  Stone,  6  Cush.  508 — where  it  was 
held  that  the  different  parts  of  the  agreement  could  not  be 
separated.     65   Mass.   7.     This  case  gives,  too,  much  light 


Legal    Aphorisms.  55 

upon  how  to  declare  in  eases  where  the  consideration  is  in 
part  bad. 

That  there  must  be  a  consideration  for  a  written  promise, 
(not  nnder  seal),  cannot  be  disputed,  and  it  seems  to  be  the 
general  result  of  the  authorities,  that  although  such  consider- 
ation is  expressly  admitted,  it  may  be  denied  and  proved  not 
to  have  existed,  in  a  suit  between  the  original  parties  to  the 
promise.  22  Mass.  -434 ;  see  as  to  note  or  contract  which 
states  on  its  face  "For  value  received."     4  Minor  1264. 

If  A  has  hesitated  or  refused  to  perform  an  agreement 
with  B,  and  is  requested  to  do  so  by  C,  who  will  derive  a 
beneiit  from  such  performance,  and  who  promises  to  pay  him 
a  certain  sum  therefor,  and  A  thereupon  undertakes  to  do  it, 
the  performance  by  A  of  his  agreement,  in  consequence  of 
such  request  and  promise  by  0,  is  a  good  consideration  to 
support  C's  promise.  163  Mass.  433,  S.  C.  34  L.  R.  A.  33, 
and  cases  cited ;  40  2^.  E.  U.  197. 

Contra  cases  cited  in  brief  in  34  L.  R.  A.  33  and  in  8 
Harvard  L.  Rev.  27. 

When  the  consideration,  although  past  and  executed,  will 
support  an  action  by  reason  of  there  having  been  an  antece- 
dent request,  express  or  implied,  it  is  a  general  and  very  im- 
portant rule,  that  the  consideration  will  support  no  other 
promise  than  such  as  would  he  implied  hy  law.  Broom  Corn. 
327.  According  to  the  current  of  recent  authorities,  when 
the  consideration  is  past  and  executed,  it  will  support  only 
such  a  promise  as  the  law  will  inqily  from  that  executed  con- 
sideration (citing  authorities).  In  Hopkins  and  wife  v. 
Logan,  5  M.  &  W.  241,  if  the  consideration,  which  was  past 
and  executed,  would   have  supported   any  ]U'omise.   it  could 


56  Legal   Aphorisms. 

only  have  supported  an  implied  promise  to  pay  the  money 
on  request ;  whereas  the  promise  stated  was  to  pay  the  money 
at  a  future  day.  That  promise  to  pay  money  in  futuro, 
which  was  payable  in  2Jrese?iti,  was  bad,  unless  there  was  a 
new  consideration  to  support  it ;  and  none  such  was  stated. 
4  Rob.  Pr.  237.  Where  the  consideration  is  one  from  which 
a  promise  is  implied,  there,  no  express  promise  made  in  re- 
spect of  that  consideration,  after  it  has  been  executed,  differ- 
ing from  that  which  by  law  would  be  implied,  can  be  en- 
forced (citing  authorities).  These  cases,  TindaU,  C.  J.,  re- 
marks, may  have  proceeded  on  the  principle  that  the  con- 
sideration was  exhausted  by  the  promise  implied  by  law, 
from  the  very  execution  of  it ;  and  consequently  any  promise 
made  afterwards,  must  be  nudum,  pactum,  there  remaining 
no  consideration  to  support  it.  7  Man.  &  Grang.  815 ;  2  Rob. 
Pr.  310. 

CONTEACTS. 

All  contracts  by  our  law  must  be  either  contracts  by  spe- 
cialty or  contracts  by  parol.  If  not  by  sealed  instruments, 
they  are  parol,  whether  verbal  or  in  writing.    15  Gratt.  169. 

Courts  of  equity  have  no  more  right  than  courts  of  law 
to  change  the  contracts  of  parties.  18  Ves.  115 ;  Leeds  r. 
Cheetham,  1  Sim.  R.  146,  2  Cond.  Eng.  Ch.  R.  74 ;  Gates  v. 
Green,  4  Paige's  R.  355;  18  Gratt.  169;  7  Crouch  69;  150 
U.  S.  182. 

Upon  the  principles  of  the  common  law,  any  one  under- 
taking'to  do  an  act  or  cause  it  to  be  done,  is  bound  to  do  it, 
or  cause  it  to  be  done  at  his  peril,  and  to  find  the  means  of 
doing  it,  unless  it  cannot  possibly  be  done  without  the  active 
concurrence  of  the  party  with  whom  the  contract  is  made.    2 


Legal   Aphorisms.  57 

Rand.  35 ;  2  Rob.  Pr.  44,  50.  The  law  does  not  protect  men 
from  their  own  carelessness  or  ignorance.    16  Mass.  240. 

Mansfield,  C.  J.,  expressed  the  .opinion  that  a  contract 
conld  not  arise  by  implication  of  law  under  circumstances, 
the  occurrence  of  which  neither  of  the  parties  had  in  contem- 
plation.   2  Rob.  Pr.  383. 

The  inclination  of  the  courts  is  to  give  effect  to  the  con- 
tracts of  parties,  and  never  to  declare  them  void  if  by  any 
reasonable  and  fair  construction  they  can  be  made  good.  21 
Gratt.  100. 

The  thoughts  of  one  party  cannot  be  proved  to  bind  the 
other.  His  secret  motives  or  intentions  are  entirely  imma- 
terial.   29  K  E.  R.  669. 

Executory — Impossibility  of  Perfoemance. 
j^othing  short  of  showing  that  the  thing  to  be  done  can- 
not, by  any  means,  be  accomplished,  will  relieve  him  from 
his  obligation;  for,  if  it  is  only  improbable,  or  out  of  the 
power  of  the  obligor,  it  is  not  in  law  deemed  impossible.  3 
Comyn's  Dig.  93;  1  Roll.  Abr.  419;  19  Wend.  502.  See, 
also,  7  Va.  L.  Reg.  149. 

Contracts  of  Debt  Defined. 
Blackstone,  in  his  commentaries,  divides  contracts  of  debt 
into  three  classes — debts  of  record,  debts  by  specialty,  and 
debts  by  simple  contract.  "A  debt  of  record  is  a  sum  of 
money,  which  appears  to  be  due  by  the  evidence  of  a  court  of 
record.  Thus  when  any  specific  sum  is  adjudged  to  l)e  due 
from  the  defendant  to  the  plaintiff  in  an  action  or  suit  at 
law,  this  is  a  contract  of  the  highest  nature,  being  established 
by  the  sentence  of  a  court  of  judicature."  2  Chitty  Black, 
Book  2,  side  p.  455. 


58  Legal   Aphorisms. 

With  us  decrees  for  money  are  of  the  same  nature  and 
dignity  as  judgments.  *  *  *  By  such  judgments  and 
decrees  the  rights  of  the  parties,  in  whose  behalf  they  were 
rendered,  to  the  money  ordered  to  be  paid,  whether  principal 
or  interest,  have  become  vested,  and  cannot  be  divested,  as 
provided  by  the  act  of  the  General  Assembly.  Griffin's  Ex'r 
V.  Cunningham,  20  Gratt.  31 ;  28  Gratt.  222.  But  a  judg- 
ment on  a  cause  of  action  not  arising  out  of  contract  is  not 
a  contract.  21  Wall,  196;  131  U.  S.  405;  47  Am.  Ptep.  64; 
5  Va.  L.  Keg.  187. 

A  void  contract  is  one  that  is  a  nullity,  obligatory  on 
neither  party  and  insusceptible  of  ratification.  Breckenridge 
V.  Ormsby,  1  J..  J.  Marshall,  236  S.  C. ;  19  Am.  Dec.  71.  x\ 
contract  for  future  delivery  must  be  certain  (not  indetermi- 
nate) as  to  the  quantity  to  be  delivered  and  as  to  the  quantity 
to  be  received.  94  S.  W.  815;  57  L.  E.  A.  699  S.  C. ;  114 
Fed.  K.  77 ;  105  Fed.  E.  869. 

Necessity  for  reading  written  contract,  the  defence  of 
fraud  at  law.   9  Va.  L.  Eeg.  672. 

In  La  Farge  v.  Eeckert,  5  Wend.  18'7,  there  was  a  writ- 
ten contract  to  deliver  certain  portable  articles  to  the  plain- 
tiff, but  no  place  of  delivery  was  specified.  It  was  held  that, 
by  construction  of  law,  the  place  of  delivery  was  the  resi- 
dence of  the  plaintiff.    18  Gratt.  212. 

Contract  of  employment  for  a  year  at  a  stipulated  salary 
per  month,  an  agreement  during  the  term  to  receive  less  or 
to  pay  more  than  the  contract  price,  held  to  be  void  unless 
supported  by  some  change  in  place,  hours  of  labor,  character 
of  employment,  or  other  consideration.  Davis  v.  jMorgan 
(Ga.)  61  L.  E.  A.  148. 


Legal   Aphorism;?.  59 

Courts  of  equity  have  no  more  right  than  courts  of  law  to 
change  the  contracts  of  parties.    18  Gratt.  169. 

Construction  of  Contracts. 

(2)  It  was  well  said  by  Gibson,  C.  J.,  Schuylkill  Xav. 
Co.  V.  :Moore,  2  Whart.  447 :  ''The  best  construction  is  that 
which  is  made  by  viewing  the  subject  of  the  contract  as  the 
mass  of  mankind  would  view  it;  for  it  may  be  safely  as- 
sumed that  such  was  the  aspect  iu  which  the  parties  them- 
selves viewed  it."  Keith,  P.,  in  AYhite  v.  Sayers,  101  Va. 
828.  In  the  construction  of  a  contract  the  whole  instrument 
is  to  be  considered ;  not  the  words  merely  in  which  they  were 
expressed,  but  their  object  and  purpose,  as  disclosed  by  the 
language,  by  the  subject  matter  and  the  condition  and  rela- 
tion of  the  parties.  18  Gratt.  1;  101  Va.  828.  Ordi- 
narily a  reference  to  what  are  called  "surrounding  circum- 
stances" is  allowed  for  the  purpose  of  ascertaining  the  sub- 
ject-matter of  a  contract,  or  for  explanation  of  the  terms 
used ;  not  for  the  purpose  of  adding  a  new  and  distinct  un- 
derstanding. Strong,  J.,  in  Maryland  v.  K.  R.  Co.  22  Wall, 
R.  714. 

Ordinarilv,  a  reference  to  what  is  called  '^surrounding 
circumstances,"  observes  Mr.  Justice  Story  in  a  recent  case, 
is  allowed  for  the  purpose  of  ascertaining  the  subject  matter 
of  a  contract,  or  for  explanation  of  the  terms  used ;  not  for 
the  purpose  of  adding  a  new  and  distinct  understanding. 
Maryland  v.  R.  R.  Co.  22  Wall,  U.  S.  R.  105,  113;  32 
Gratt.  724. 

(1)  In  the  construction  of  contracts  the  law  regards  the 
subject-matter  more  than  the  manner;  the  substance  more 
than  the  form ;  the  spirit  more  than  the  letter.    7  Pick.  503. 


60  Legal    Aphorisms. 

Where  the  evidence  is  to  be  extracted  from  letters,  it  is 
essential  to  avoid  laying  too  much  stress  on  single  expressions, 
the  object  being  to  ascertain  fairly  from  the  whole  of  the 
correspondence  w^hat  was  the  real  intention  and  understand- 
ing of  the  parties.  4  Adolph.  &  El.  K  S.  230 ;  45  E.  C.  L. 
230 ;  18  Adol.  &  El.  U.  S.  503 ;  12  Eng.  L.  &  E.  435 ;  3  Rob. 
Pr.  62.  See,  also,  for  rules  of  construction,  11  Gratt.  437 ; 
Dl  Va.  297. 

The  doctrine  of  anticipatory  breach  of  contract,  6  Va.  L. 
R.  714. 

Corporations. 

A  corporation  is  an  absjtract  legal  entity.  1  Otto.  U.  S. 
R.  588-9 ;  75  Va.  720 ;  an  artificial  person,  75  Va.  272.  A 
corporation  is,  "in  the  language  of  Chief  Justice  Marshall, 
in  Dartmouth  College  v.  Woodward,  4  Wheat.  R.  518,  the 
mere  creature  of  the  law;  it  possesses  only  those  properties 
which  the  charter  of  its  creation  confers  upon  it,  either  ex- 
pressly or  as  incidental  to  its  very  existence.    26  Gratt.  95. 

A  cardinal  rule,  in  the  interpretation  of  charters  of  in- 
corporation, is  thus  laid  down  by  Mr.  Justice  Grier  in  Rich- 
mond Railway  Co.  v.  The  Louisa  Railway  Co.,  13  How.  U. 
S.  R.  71:  "Public  grants  are  to  be  construed  strictly,  and 
any  ambiguity  in  the  terms  of  the  grant  must  operate  against 
the  corporation,  and  in  favor  of  the  public ;  and  the  corpora- 
tion can  claim  nothing  but  what  is  clearly  given  by  the  act." 
26  Gratt.  95. 

The  name  of  a  corporation — right  to  exclusive  use — mis- 
take in  name  in  judicial  proceedings — in  grants,  contracts, 
wills,  etc.    1  Va.  L.  Reg.  547. 

Alienation  of  corporate  franchises.   1  Va.  L.  Reg.  546. 


Legal   Aphokisms.  61 

Domestic  Corporations. — Jurisdiction  of  justice  court  in 
a  city  or  county  other  than  that  in  which  the  corporation  has 
its  principal  office,  to  try  warrants  for  small  claims  against 
it.  In  the  case  of  'Nat.  Ins.  Co.  of  Va.  v.  Hutchins,  removed 
to  the  Corporation  Court  of  the  city  of  Newport  !N^ews  from  a 
justice  court  in  that  city,  the  defence  interposed  was  that  the 
defendant  was  a  domestic  corporation,  with  its  principal  office 
and  jDlace  of  business  in  the  city  of  Norfolk,  and  that  the 
Court  was  without  jurisdiction,  although  the  process  had  been 
served  on  a  local  agent  of  the  company,  doing  business  for  it 
in  the  city  of  Newport  News.  Judge  T.  J.  Barham,  the  able 
judge  of  that  court,  held  that  the  justice  court  had  jurisdic- 
tion, and  the  Supreme  Court  of  Appeals  of  Virginia  refused 
to  grant  a  writ  of  prohibition. 

Books  of  a  Corporation  as  Evidence. 
Whenever  the  acts  of  a  corporation  are  to  be  proved,  the 
books  of  such  corporation  are  the  best  evidence  of  its  acts, 
and  should  be  admitted.  In  Grays  v.  Turnpike  Co.,  4  Eand. 
578,  the  existence  of  the  corporation  was  to  be  proved;  and 
even  upon  this  question,  the  books  were  received  as  projDer 
evidence.  They  were  received  to  show  that  the  persons  who 
subscribed  the  capital  stock  had  proceeded  to  organize  them- 
selves into  a  corporation,  in  the  manner  prescribed  by  the 
act  incorporating  the  company,   1  Kob.  (old)  Pr.  319. 

Verified  Answer — Effect  Of. 

It  has  been  held  that  the  answer  of  a  corporation,  verified 
by  the  affidavit  of  an  officer  of  the  corporation  who  is  not  a 
party  to  the  suit,  has  the  same  effect  as  if  the  officer  making 


62  Legal    Aphorisms. 

the  affidavit  had  been  made  a  party,  and  this  is  the  same 
effect  as  is  given  to  the  answer  in  a  suit  against  an  individ- 
ual. 48  Atl.  E.  989  ;  43  Atl.  R.  235 ;  Carpenter  v.  Ins.  Co., 
4  How.  (U.  S.)  219;  but  see  13  Gratt.  62;  69  Va.  510;  32 
S.  E.  E.  295;  2  Hump.  (Tenn.)  192;  35  W.  Va.  433,  14  S. 
E.  E.  146.  These  authorities  may,  possibly,  be  distinguished. 
If  a  plaintiff  wishes  to  have  a  sworn  answer  he  must  make 
some  one  of  the  officers  or  members  parties  defendant,  but  if 
the  corporation  is  the  sole  defendant,  and  an  answer  under 
oath  is  not  waived,  and  it  wishes  to  have  the  benefit  of  an 
answer  under  oath,  under  the  first  line  of  authorities  cited 
above,  it  may  support  its  answer  by  the  affidavit  of  one  of  its 
officers.  But  see  what  is  said  in  13  Gratt.  on  page  62,  and 
12  Gratt.  on  page  644. 

Liability  of  for  wrongs  and  malicious  and  negligent  torts 
of  its  servants.    8  Va.  L.  Eeg.  850. 

Conveyances. 

Advisable  to  insert  in  conveyances  a  clause  by  which  the 
grantor  shall  expressly  assign  to  the  grantee  the  benefit  of 
any  covenants  of  title  held  by  him  of  his  predecessor.  See 
7  Va.  L.  Eeg.  69. 

Eorm  of,  in  consideration  of  support  and  maintenance  to 
be  taken  in  connection  with  the  ruling  of  the  court  in  con- 
struing.    10  Leigh,  173. 

Counsel  Fees. 
When  recoverable  as  damages,  94  Va.  414 ;  5  Va.  L.  E. 

465. 

Courts. 

It  is  a  maxim  that  acts  of  courts,  of  competent  jurisdic- 


Legal   Aphorisms.  C3 

tion  are  presumed  to  have  been  rightly  and  regularly  done 
until  the  contrary  is  made  to  appear.  Powell  on  Ai)p.  Pr. 
and  cases  cited.    127,  241 ;  27  Graft.  257. 

Injustice  Occasioned  hy  Their  Own  Acts  or  Oversights. 
In  the  case  of  Pulteney  v.  Warren,  6  Ves.  K.  73,  the  doc- 
trine is  broadly  avowed  that  it  is  the  dntv  of  the  court  to 
relieve  a  party,  as  far  as  it  can,  from  the  injustice  to  which 
the  shortness  of  its  proceedings  may  have  exposed  him.  It  is 
said  there  to  be  a  principle  on  which  courts  of  justice  should 
act  without  scruple,  to  relieve  parties  against  the  injustice 
that  may  be  occasioned  by  its  own  acts  or  oversights,  at  the 
instance  of  the  party  against  whom  the  relief  is  sought.  10 
Gratt.  36,  citing  authorities. 

Creditors'  Suit. 
Proof  of  debt  when  creditor  is  partially  secured,  2  Va.  L. 
Reg.  120. 

Form  of  bill,  <)4  Va.  440. 

For  Accounts. — That  one  of  the  commissioners  of  this 
court  do  ascertain  the  amounts  of  judgments  and  other  liens 
against  the  defendant,  and  the  real  estate  owned  by  the  said 
defendant  or  which  was  owned  by  him  when  any  one  of  said 
liens  was  acquired,  its  location,  the  number  of  acres  and  the 
condition  of  the  title  thereto,  and  the  annual  and  fee  simple 
value  thereof,  and  make  re]xirt  to  court  together  with  any 
matter  deemed  pertinent  by  himself,  or  which  any  party  may 
require  to  be  stated  and  reported.   See  26  Gratt.  355-6. 

Form  of  decree  of  sale.    26  Gratt.  360-1. 


64:  Legal   Aphokisms. 

Damages — 8ee  Set-Offs. 

Damages  for  which  a  party  may  he  held  liable  for  a 
Breach  of  Contract. — The  practical  rule,  founded  on  a  wise 
policy,  and  at  the  same  time  consistent  with  good  sense  and 
sound  equity,  is  that  a  party  can  be  held  liable  for  breach  of 
a  contract  only  for  such  damages  as  are  the  natural  or  neces- 
sary, and  the  immediate  and  direct  results  of  the  breach, — 
such  as  might  properly  be  deemed  to  have  been  in  contem- 
plation of  the  parties  when  the  contract  was  entered  into, — 
and  that  all  remote,  speculative  or  uncertain  results,  as  well 
as  possible  profits  and  advantages  and  other  like  conse- 
quences which  might  have  arisen  from  the  fulfilment  of  the 
contract  must  be  excluded,  as  forming  no  just  or  legitimate 
basis  on  which  to  determine  the  extent  of  the  injury  actually 
caused  by  a  breach.  Fox  v.  Harding,  7  Cush.  516 ;  Gritting 
V.  Grand  T.  K.  Co.;  13  Allen,  381-384;  98  Mass.  237-8. 

The  rule  of  law  is,  that  where  special  damages  are  not 
alleged  in  the  declaration,  the  plaintiff  can  prove  only  such 
damages  as  are  the  necessary  as  well  as  proximate  result  of 
the  act  complained  off ;  but  where  they  are  alleged,  they  may 
be  proved  so  far  as  they  are  the  proximate,  though  not  the 
necessary  result.  1  Chitty  PI.  (6  Ed.)  441;  2  Greenl.  Ev., 
sec.  256;  Dickinson  v.  Boyle,  17  Pick.  78;  89  Mass.  508. 

In  jurisdictions  where  the  common-law  systems  of  plead- 
ing prevails  the  doctrine  is  that  special  damages — that  is  to 
say,  such  damages  as  do  not  necessarily  flow  from  the  act  or 
omission  complained  of,  must  be  specially  laid  in  the  declara- 
tion, or  they  cannot  be  recovered.  Lee  v.  Hill,  84  Va.  919. 
On  the  other  hand,  when  the  damages  are  the  natural  and 
proximate  result  of  the  act  or  default  complained  of,  they  are 


Legal   Aphokisms.  C5 

general,  are  legally  imported  from  such  act  or  default,  and 
need  not  be  specially  pleaded.     100  Va.  309. 

The  duty  to  minimize  damages.  6  Va.  L.  Reg.  714;  93 
Va.  394,  514;  94  Va.  175. 

Measure  of  Damages. 

Of  buyer  of  goods  against  seller  in  default.  1  Va.  L. 
Eeg.  470 ;  -11  Wend,  346 ;  1  Brock  212 ;  7  Hill  61. 

When  buyer  sues  seller  on  warranty.  40  N.  J.  Eq.  663 ; 
53  Am.  n.  7 So,  and  note. 

Where  discharged  employee  goes  to  work  for  himself.  8 
Va.  L.  Eeg.  456. 

When  goods  have  been  resold,  which  buyer  refused  to 
receive.    18  Gratt.  795. 

For  the  breach  of  an  executory  contract  for  the  sale  and 
delivery  of  personal  property.    1  Gratt.  390. 

In  an  action  by  vendee  for  the  breach  of  a  contract  of 
sale  by  the  vendor,  in  not  delivering  the  article.  1  Brock  212 
and  note  by  Chief  Justice  Marshall. 

In  action  on  contract  of  indemnity.  6  Wall,  94 ;  131 
Mass.  100. 

In  an  action  \o  recover  damages  for  injuries  to  a  horse, 
sustained  in  consequence  of  a  defect  in  a  highway,  the  plain- 
tiff is  entitled  to  recover  the  diminution,  occasioned  by  the 
injury,  in  .the  market  value  of  the  horse  at  the  commence- 
ment of  the  action,  and,  in  addition,  such  sums  as  the  plain- 
tiff has  paid  out  in  reasonable  attempts  to  cure  him,  with  a 
reasonable  compensation  for  his  own  services  in  attempting 
to  cure  him,  and  a  reasonable  sum  as  compensation  of  the 
loss  of  the  use  of  the  horse  while  under  such  treatment ;  pro- 
vided that  the  whole  damages  allowed  do  not  exceed  the  value 
of  the  horse.    90  :\rass.  560. 


6G  Legal    Aphoi^isms, 

When  goods  have  been  paid  for  and  not  delivered.  T  Cow. 
681 ;  63  Ain.  Dec.  474. 

For  breach  of  warranty  of  qnalitv  on  the  sale  of  a  chattel 
is  the  difference  between  the  actual  value  of  the  thing  deliv- 
ered and  the  value  it  would  have  possessed  had  it  answered  to 
the  warranty.  See  1  Va.  L.  Reg.  470 ;  6  Va.  L.  Reg.  644, 
correcting  note  on  p.  571  of  same  volume.    . 

In  case  of  deceit  in  warranty  of  quality.  6  Va.  L.  Reg. 
571,  and  is  the  same  in  an  action  for  deceit  or  breach  of 
warranty.    102  Mass.  440. 

For  failure  to  deliver  premises  to  tenant  or  for  eviction. 
Kline  V.  McLain  (W.  Va.)  10  S.  E.  R.  13. 

Where  Damages  Are  Agreed  on  hy  fJie  Parties. 

This  was  the  measure  of  damages  agreed  on  by  the 
parties  themselves ;  and  we  think,  in  a  case,  of  this  character, 
in  which  the  damages  must  be  of  necessity  to  a  great  extent 
conjectural,  the  measure  agreed  on  by  the  parties  should  gov- 
ern the  court.  I  agree  with  Best,  C.  J.,  when  in  the  case  of 
Crisdee  v.  Botton,  3  Car.  and  Pavne  240,  he  said:  "The  law 
relative  to  liquidated  damages  has  always  been  in  a  state  of 
great  uncertainty.  This  has  been  occasioned  by  judges  en- 
deavoring to  make  better  contracts  for  parties  than  they  have 
made  for  themselves.  I  think  that  the  parties  to  contracts 
from  knowing  exactly  their  own  situations  and  objects,  can 
better  appreciate  the  consequences  of  their  failing  to  obtain 
those  objects  than  either  judges  or  juries.  Whether  a  con- 
tract be  under  seal  or  not,  if  it  clearly  states  what  shall  be 
paid  by  the  })arty  who  l)reaks  it  to  the  party  to  whose  preju- 
dice it  is  broken,  the  verdict  in  an  action  for  the  breach  of  it. 


Legal    Ai'iiouis.Nrs.  07 

should  be  for  the  stipulated  sinu.  A  court  of  justice  has  no 
more  authority  to  put  a  different  construction  (»n  the  part  of 
an  instrument,  ascertaining  the  amount  of  damages,  than  it 
has  to  decide  contrary  to  anv  other  of  its  clauses.  Our  office 
is  to  ascertain  the  intent  of  the  parties,  and  if  it  be  not  con- 
trary to  law,  to  carry  their  intent  into  i-xecution.  In  tin- 
present  case  no  eyidence  has  been  adduced  of  the  amount  of 
damage  sustained  by  the  plaintiff,"  kc.  Baldwin,  J.  23 
Gratt.  403. 

Measure  of  damages  against  one  who  connnits  a  trespass 
or  other  wrongful  act.  The  general  rule  is,  that  the  party 
who  commits  a  trespass  or  other  wrongful  act  is  liable  for  all 
the  direct  injury  resulting  from  such  act,  although  such  re- 
sulting injury  could  not  haye  been  contemplated  as  a  probable 
result  of  the  act  done.  GO  X.  Y.  252 ;  118  Mass.  251 ;  44  Vt. 
208;  00  Maine  23!).  These  cases,  and  many  more  which 
might  be  cited,  clearly  establish  the  doctrine  that  one  who 
commits  a  trespass  or  other  wrong  is  liable  for  all  the  dani- 
aa-es  which  legitimately  flows  directly  from  such  trespass  or 
wrong,  whether  such  damages  might  haye  been  foreseen  by 
the  wrong-doer  or  not.     54  Wis.  354. 

Debt. 

Debts  Defined,  See  Contracts. 
The  action  for  debt  lies  only  for  money.  On  an  obliga- 
tion to  pay  or  deliyer  other  article  covenant  (or  assumpsit) 
is  the  pru^ier  remedy,  and  the  recovery  is,  of  a  compensation 
in  daniaaes.  Bonds,  bank-notes  and  other  choses  in  action 
are  not  money,  but  stand  in  the  same  category  with  other 
articles  in  this  respect.    \-2  Gratt.  521.    See  :5  llob.  Pr.  374. 


68  Legal   Aphorisms. 

Payable  in  instalments;  how  recovered.  3  Rob.  Pr.  35S. 
1  Chitty  PI.  (7  Am.  Ed.)  373,  129,  134;  22  Gratt.  643. 

In  this  case  the  conrt  ^a^^s:  ''The  obligation  is  to  pay  a 
snm  of  money  in  twenty-five  annnal  instalments,  npon  which 
debt  will  not  lie  nntil  the  whole  amonnt  becomes  payable. 
The  proper  remedy  wonld  be  an  action  of  covenant  for  the 
recovery  of  the  instalments  as  they  fall  dne."  Since  this 
decision  the  Legislature  has  passed  the  act  embodied  in  Pol- 
lard's Code  as  section  3246a,  which  abolishes  the  distinc- 
tions between  assumpsit  and  covenant.  See  the  construction 
23ut  upon  the  similar  act  with  reference  to  assumpsit  and 
trespass  on  the  case — v.  c.  2901.  When  statute  of  limitations 
begins  to  run  there  "in  case  of  default  in  paying  any  instal- 
ment, the  plaintiff  should  be  at  liberty  to  enter  judgment  and 
issue  execution,  as  if  all  the  periods  for  payment  had  ex- 
pired."   1  Rob.  Pr.  475. 

As  to  the  recovery  of  rent.  Lord  Coke  notes  "a  diversity 
between  a  rent  reserved  upon  a  lease  for  years,  reserving  a 
yearly  rent :  the  lessor  may  have  several  actions  of  debt  for 
every  year's  rent.  But  upon  a  bond  or  contract  for  payment 
of  several  sums  no  action  of  debt  lieth  till  the  last  day  be 
past."  Co.  Lit.  47b;  3  Rob.  Pr.  358. 

Less  than  amount  claimed  in  declaration  may  be  recov- 
ered. 

Formerly  it  was  thought,  that  in  an  action  of  debt  on 
simple  contract,  the  precise  sum  stated  in  the  declaration  or 
that  the  plaintiff  would  be  non-suited.  1  Chitty  PI.  (7  Am. 
Ed.)  117.  It  is  now,  however,  completely  settled,  that  the 
plaintiff  may,  in  debt  on  simple  contract,  prove  and  recover 
less  than  the  sum  stated  in  the  declaration.    Idem  120. 


Legal  Aphorisms.  69 

Debtok  and  Creditor. 

One  cannot  make  another  his  debtor,  without  his  request, 
in  fact  or  in  law,  and  especially  by  an  act  done  contrary  to 
his  express  will.  It  is  therefore,  necessary  in  an  action  of 
this  description,  to  av^er  and  prove  the  defendant's  special 
instance  and  request ;  and,  in  such  cases  the  implication  sus- 
tains the  averment.  Thus,  when  one  is  compelled  to  pay 
money  for  another  as  surety,  indorser,  or  the  like,  the  obliga- 
tion to  pay,  entered  into  for  the  benefit  and  at  the  request 
of  the  principal,  is  in  law  a  request  to  pay  the  debt.  So, 
where  two  or  more  are  severally  subject  to  one  common  debt 
and  one  pays  the  whole,  and  relieves  his  co-surety,  as  well  as 
himself ;  then,  as  to  one-half,  such  surety  pays  for  the  use  of 
the  co-surety,  who  was  equally  liable ;  and  an  equitable  obli- 
gation therein  arises,  on  the  part  of  the  co-surety,  to  pay  an 
equal  share  of  the  common  debt,  upon  which  equitable  obli- 
gation the  law  implies  a  promise.  Deeriug  v.  Winchelsea,  2 
Bos.  &  Pul.  270;  56  Mass.  409. 

In  proceeding  to  enforce  collateral  securities  it  is  not  in- 
cumbent on  the  creditor  primarily  to  pursue  his  remedy  at 
law  on  the  securities,  but  his  remedy  for  that  purpose  is 
peculiarly  in  a  court  of  equity,  which  can  only  enforce  his 
securities.  He  may  pursue  his  remedies  at  law  and  in  equity 
at  the  same  time,  but  he  can  have  one  satisfaction  onlv.  29 
Gratt.  681-2. 

Deceit. 

Counts  in  declaration,  where  in  sale  there  is  deceit  as  to 
quality.     4  Rob.  Pr.  747. 

Jones,  ^c.  V.  Bowdcn,  &c. ;  4  Taunt.  847,  was  for  deceit 
in  the  sale  of  some  piments. 


70  Legal   Aphoeisms. 

The  second  count  stated  that  defendants,  well  knowing 
that  divers — to  wit:  20  bags  of  the  piments,  had  been,  and 
were,  sea-damaged,  and  in  a  bad  state  and  condition,  and  that 
divers,  to  wit:  81  bags  thereof  were  also  damaged  and  in  a 
bad  state  and  condition,  did  nevertheless  falsely,  fraudulently 
and  deceitfully  represent  the  same,  101  bags  of  piments,  to 
be  sound  and  in  a  good  state  and  condition,  free  from  damage, 
and  thereby  induced  plaintiffs  to  buy  the  same,  «Src.,  whereas, 
in  truth,  the  piments,  at  the  time  of  the  sale  and  representa- 
tion, was  not  sound,  etc.     The  third  count  alleged,  that  de- 
fendants were  desirous  of  selling,  and  put  up  to  sale  by  the 
candle,  certain  other  piments,  whereof  divers,  to  wit :  20  bags 
had  been,  and  were,  sea-damaged,  and  in  a  bad  state  and  con- 
dition, and  divers,  to  wit :  81  bags,  residue  thereof,  were  also 
unsound  and  damaged,  in  a  bad  state  and  condition,  and  of 
little  value ;  nevertheless  defendants  well  knowing  the  premi- 
ses, did  fraudulentlv  and  deceitfully  sell  the  same  as  and  for 
piments  of  sound  quality,  and  in  a  good  state  and  condition, 
and  not  damaged,  to  plaintiffs. 

Gibbs,  J.,  doubted  whether  either  of  these  counts  was  sus- 
tained by  the  evidence;  but  a  majority  of  the  court  gave 
judgment  on  the  verdict  for  plaintiffs. 

Decisions. 
Judge  Staples,  after  quoting  the  language  of  Judge 
Cabell,  "one  of  the  foremost  chancellors  of  his  generation," 
"a  man  of  the  purest  character  and  the  greatest  learning," 
Ilardwicke  says,  in  Galton  v.  Hancock,  2  Alk.  E.  138,  in  an- 
nouncing an  entire  change  of  opinion  upon  a  question  before 
him :  "There  arc  the  reasons  which  induced  me  to  alter  my 


Legal   Aphorisms.  71 

opinion,  and  I  am  not  ashamed  of  doini--  it,  for  I  always 
thought  it  a  much  greater  reproach  to  a  judge  to  continue  in 
his  error  than  to  retract  it."  Fortified  by  such  examples,  I 
have  no  difficulty  in  retracting  my  error.    22  Gratt.  572. 

Upon  a  tpK  sTi.ui  not  jjn.perly  before  the  court,  its  decision 
is  simply  nugatory.    IS  Gratt.  oTO;  ;>0  Gratt.  741. 

Protection  of  rights  ac(piired  under  an  overruled  decision. 
8  Va.  L.  Eeg.  73  ;  10  Idem.  7ii4 ;  U2  Ala.  176 ;  28  Gratt.  222 ; 
25  Gratt.  771.  "To  permit,"  says  Chancellor  Kent,  "a  subse- 
quent judicial  decision  in  any  one  given  case,  on  a  jwint  of 
law,  to  open  or  annul  everything  that  has  been  done  in  other 
cases  of  the  like  kind,  for  years  before,  under  a  different 
understanding  of  the  law,  would  lead  to  the  most  mischievous 
consequences.  Fortunately  for  the  peace  and  happiness  of 
society,  there  is  no  such  pernicious  precedent  to  be  found.  '  2 
Johns.  Chy.  II.  CO;   4  Pick.  IS. 

Stare  decrisis.  9  Va.  L.  Reg.  574 :  "Let  us  not  change  our 
rule.  Jus  nostrum  magis  quam  allenum',  servemus."  Lee,  J. 
15  Gratt.  120.  An  instance  among  those  anomalies  of  the 
law  which  some  times  arise  from  blindly  following  the  hasty 
decision  of  a  distinguished  judge.     5  Hill  453. 

English  decisions  prior  to  the  Revolution  (construing  the 
common  law)  have  all  that  claim  to  authority  which  is 
allowed  to  appellate  courts.  Chief  Justice  Marshall,  1  Brock 
140.  See,  also,  15  Gratt.  374;  construing  our  statute  is  not^ 
obligatory,  although  our  statute  is  similar  to  theirs.  1  Pet. 
3G3;  Harding's  R.  (Kty.)  301. 

Decisions  of  foreign  State  as  evidence  of  the  law  in  that 
State.  In  13  Gratt.  441,  .Judge  Daniel  says:  "It  appears, 
from  the  report  of  the  decision  of  the  Supreme  Court  of  Ohio 


V2  Legal    Afiiokisms. 

in  the  case  *  *  *  which  was  given  in  evidence  by  the 
defendants  on  the  trial,  to  have  been  decided  by  that  court, 
that,"  &c. 

Declakations  and  Admissions.  . 

See  Admissions  and  Declarations. 

A  declaration  should  not  allege  that  a  party  was  "duly" 
appointed  or  elected,  '^lawfully,"  ''sufficient,"  "by  virtue  of  a 
certain  writ,"  etc.,  without  setting  it  forth :  but  should  state 
what  in  particular  was  done ;  so  that  if  the  fact  be  admitted, 
the  court  can  determine  the  legal  effect ;  or  if  issue  be  joined 
on  the  allegation,  the  jury  can  answer  as  to  its  truth.  3  Rob. 
Pr.  530;  1  Chitty  PL  (7  Am.  Ed.)  271,  365;  but  see  100 
Va.  436. 

The  court  may  look  to  the  declaration  or  petition  to  see 
whether  the  action  is  on  the  instrument  or  its  consideration. 
IsTewell  v.  ISTixon,  4  Wall  581;  5  Rob.  Pr.  253;  2  H.  &  M. 
423.   See,  also,  25  Graft.  769. 

As  to  the  effect  of  miscalling  the  action  in  the  beginning 
of  his  declaration,  see  3  Rob.  Pr.  527,  and  2  H.  &  M.  441. 

When  the  declaration  shows  that  the  plaintiff  has  no  right 
of  action,  and  that  the  right  of  action  is  in  another  and  ver- 
dict for  plaintiff,  the  statute  of  jeofails  does  not  apply,  and 
the  court  should  give  judgment  for  the  defendant  non  ob- 
stante veredicto.   12  Leigh  204;  15  Graft.  01. 

If  the  declaration  be  bad,  the  defendant  should  demur, 
or  move  in  arrets  of  judgnunit.  He  cannot,  upon  the  trial, 
object  to  the  evidence  in  support  of  it  (provided  it  agrees 
with  the  declaration)  merely  on  the  ground  of  its  insuffi- 
ciency to  maintain  an  action.    2  Call  530. 


Lkgai-    AnioKis.Ms.  73 

Counts  ill  a  declaration,  against  two  or  more,  cannot  be 
joined  with  a  count  against  one  of  them  severally;  nor  in  an 
actio;i  against  husband  and  wife  can  the  plaintiff  count  on 
promises  by  the  wife  bcfoi'c  marriage,  and  also  on  promises 
by  the  husband  during  marriage;  this  is  a  misjoinder  of 
action  ;  for  the  promises  before  marriage  charge  the  husband 
and  wife  and  the  promises  by  the  husband  after  marriage 
charge  him  alone.    82  Va.  501;    1  Rob.  (old)  Pr.  284. 

Misjoinder  of  Counts. 

The  objection  is  that  the  whole  declaration  is  bad,- because 
it  is  not  framed  according  to  the  rules  which  the  law  has  pre- 
scribed ;  and,  therefore,  upon  a  general  demurrer  thereto, 
judgment  will  be  given  for  the  defendant.  May  v.  House  and 
wife,  2  Chitty's  R.  697 ;  IS"  Eng.  Com.  Law  Rep.  4G1 ;  1  Rob. 
(old)  Pr.  28-i;  C  Gratt.  134;  and  the  declaration  may  not  be 
amended ;  the  judgment  on  general  demurrer  will  be  final.  94 
Va.  779 ;  4  Minor  448 ;  6  Gratt.  134.  The  Supreme  Court 
of  Appeals  of  Virginia,  however,  in  the  ease  of  Creel  v. 
Brown,  1  Rob.  205,  reversed  and  remanded  the  case  to  give 
the  plaintiff  an  opportunity  to  amend,  where  it  appeared  that 
one  count  was  in  toi-t  and  the  other  in  assumpsit,  and  the  de- 
murrer which  had  been  interposed  had  not  bt'cii  acted  on. 
See,  also,  lOO  Va.  <)45 ;  Gould's  PI.  (Hamilton's  reprint  of 
Second  Ed.)  2U9,  citing  4  T.  li.  347-&,  300. 

Atnendnient  Increasing  Damages. — Amendment  of  the 
declaratiiiii  at  the  trial,  in  indebitatus  assumpsit  by  increasing 
the  amount  in  the  several  e<juiits  and  in  the  claim  for  dam- 
ages, but  not  changing  the  cause  of  .action,  may  be  allowed. 
Tasscy  v.  Church,  4  Watts  cl-  S.  (Pa.)  141 ;  3!i  Am.  Dec.  05; 
24  X.  E.  R.  594. 


74  Legal   Aphoeisms. 

The  breach  at  the  end  of  the  declaration  applies  to  each 
of  the  counts,  and  is  sufficient,  though  the  sum  of  money 
therein  mentioned  is  the  same  sum  mentioned  at  the, com- 
mencement of  the  declaration  and  in  each  of  the  counts.  *  * 
The  debts  demanded  should  regularly  be  the  aggregate  of  all 
the  sums  alleged  to  be  due  in  the  different  counts ;  but  a  mis- 
take in  this  respect,  whether  more  or  less  be  stated,  will  not 
be  a  cause  of  demurrer.     1  Chitty  PI.  3(31 ;  10  Gratt.  133. 

''The  breach  charged  is  co-extensive  with  the  legal  import 
of  the  contract;   and  that  is  always  sufficient.     22  Gratt.  307. 

In  assumpsit,  if  there  be  several  counts  in  the  declaration, 
the  defendant  should  be  charged  as  having  failed  to  pay  the 
several  sums  of  money  aforesaid,  and  every  part  thereof.  If 
this  be  not  done,  but  the  breach  charged  at  the  end  of  the  last 
count  be,  that  the  defendant  hath  not  paid  "the  said  sum  of 
money,"  and  it  appears,  upon  a  demurrer  to  evidence,  that  all 
the  evidence  adduced  by  the  plaintiff  applies  only  to  the  first 
count,  judgment  ought  to  be  given  for  the  defendant.  5  Munf. 
196. 

If  the  breach  stated  is  not  sufficiently  laid,  and,  therefore, 
would  be  bad  on  demurrer,  it  will,  nevertheless,  be  cured  by 
a  verdict,  if  the  necessary  facts  are  stated,  though  imper- 
fectly.   3  Rand.  94. 

When  a  person's  house  is  burnt,  general  words  are  suffi- 
cient in  the  description  of  the  goods  thereby  destroyed,  be- 
cause he  is  not  presumed  to  be  able  to  set  forth  with  certainty 
the  goods  destroyed.  Bac.  Ab.  Pleas.  35  ;  1  Keb.  825  ;  Plowd. 
85;  sed  vide  2  Saund.  379;  1  Chitty  PI.  (7  Am.  Ed.)  270; 
5  Johns.  R.  1G8,  an  action  on  a  sheriff's  bond.  And  so,  also, 
it  was  held  in  T)e  Svmons  v.  Johnston,  2  i^ew  Rep.  77,  that 


Legal    Aimiukisms.  75 

in  declaring  on  a  policy  of  insurance  on  specified  goods,  it  is 
sufficient  to  aver  that  divers  goods  were  put  on  board. 

Where  the  declaration  clearly  shows  who  made  the  prom- 
ise, and  to  whom  it  was  made,  and  that  it  was  to  pay  a  deljt 
of  the  promisee,  to  the  plaintiffs,  and  is  supported  by  a  good 
and  valuable  consideration,  this  is  a  sufficient  statement  of  a 
cause  of  action  to  enable  the  plaintiff  to  recover,  if  sustained 
by  evidence.   4  Denio.  1)0. 

Forms. — Sufficient  form  for  declaration  on  an  indemnify- 
ing bond.  94:  Va.  158.  For  loss  by  fire  negligently  communi- 
cated, to  be  used  subservient  to  criticisms  on  page  208  in 
opinion.  95  Va.  203.  Form  of  a  special  count  on  a  written 
contract.    100  Va.  613. 

If  the  declaration  contains  one  or  more  counts  against  the 
maker  of  a  note  or  acceptor  of  a  bill  of  exchange,  it  will  be 
proper  to  place  them  first  in  the  declaration,  and  then  in  the 
general  conclusion,  to  say,  promised  to  pay  the  said  last  men- 
tioned several  moneys,  respectively.   -4  Rob.  Pr.  508. 

When  contract  is  declared  on  specially  it  must  be  proved 
as  laid.  1  Wash.  363  ;  1  W.  Va.  87 ;  23  W.  Va.  617  ;  88  Am. 
Dec.  664 ;  2  Encv.  of  Ev.  54. 

Decree. 
See  Chancery  Practice. 
A  verdict  and  judgment  of  a  court  of  record  or  a  decree 
in  a  court  of  chancery  puts  an  end  to  all  }X)ints  decided  be- 
tween the  parties  to  the  suit.  There  is,  and  ought  to  be,  no 
difference  between  a  verdict  and  judgment  in  a  court  of  law 
and  a  decree  in  a  court  of  equity.  They  both  stand  on  the 
same  footing,  and  may  be  offered  in  evidence  under  the  same 


76  Legal   Aphokisms.  . 

limitations ;    and  it  would  be  difficult  to  assign  a  reason  why 
it  should  be  otherwise.    32  Gratt.  104. 

Action  lies  on  decrees  for  money.  It  is  now  established, 
that  where  a  chancery  suit  terminates  in  the  simple  result  of 
ascertaining  a  clear  balance  and  an  unconditional  decree  that 
an  individual  must  pay  it.  An  action  will  lie  on  such  decree. 
Citing  16  How.  76-7,  among  other  authorities.  2  Eob.  Pr. 
124.  Where  a  chancery  suit  in  one  country  has  terminated 
in  the  simple  result  of  ascertaining  a  clear  balance,  and  de- 
creeing unconditionally  that  an  individual  shall  pay  it,  an 
action  at  law  may  be  maintained  in  one  country  on  such  de- 
cree, in  like  manner  as  on  a  judgment.  1  Eob.  Pr.  204,  citing 
various  English  authorities. 

Deed. 

Where  it  appears  that  the  grantor  intended  to  execute  a 
deed,  and  the  seal  is  omitted  by  accident,  mistake  or  inadver- 
tence, the  court  of  equity  will  regard  the  instrument  as  a  deed, 
and  supply  a  seal.  Bernard's  Tp.  (Inhabitants)  v.  Stebbins, 
109  U.  S.  341 ;  27  L.  Ed.  956 ;  1  Pom.  Eq.  Jur.,  sec.  383 ;  24 
S.  Ca.  595;  13  S.  E.  619,  624;  Boggess  v.  Scott,  37  S.  E. 
(W.  Va.)  663.  In  the  last  case  the  court  say:  Xow,  though 
that  conveyance,  for  want  of  a  seal,  does  not  pass  technical 
legal  title,  yet  it  passes  equitable  title — vests  such  title  in 
Wheeler  Boggess — and  a  court  of  equity  would  compel  the 
conveyance  of  the  legal  title,  so  as  to  cure  the  defect  of  want  ol 
seal.  It  is  a  covenant  to  convey,  an  executory  contract  to  pass 
the  legal  title,  because  the  party  has  attempted  to  convey  the 
legal  title,  but,  owing  to  an  omission,  has  failed  to  do  so. 
Therefore  equity  looks  upon  Wheeler  Boggess,  for  such  a 
purpose  as  is  involved  in  this  case,  as  the  real  owner. 


Legal   Aphorisms.  77 

And  ill  the  South  Carolina  case  the  court  say:  It  has  all 
the  essential  elements  of  a  conveyance  of  real  estate,  except 
the  seal ;  and  its  omission  was  clearly  accidental,  and  cer- 
tainly not  intentional.  -  -  ""  so  that  there  cannot  be  a 
doubt  that  the  intention  was  to  execute  a  formal  deed,  and 
the  ])arties,  as  well  as  the  witnesses,  together  with  the  record- 
ing officer,  manifestly  supposed  that  the  paper  was  what  it 
was  intended  to  be — a  valid  deed.  This  being  the  case,  a 
court  of  equity  will  regard  the  paper  as  a  deed,  and  will  sup- 
ply this  accidental  omission  of  the  seal. 

By  the  common  law,  deeds  of  conveyance,  or  other  deeds, 
made  contrary  to  the  provisions  of  a  general  statute,  or  for  an 
unlawful  consideration,  or  to  carry  into  effect  a  contract  un- 
lawful in  itself,  or  in  consequence  of  any  prohibitory  statute, 
are  void  ah  initio;  and  may  be  avoided  by  plea;  or,  on  the 
general  issue  of  non  est  factum^  the  illegality  may  be  given  in 
evidence,  to  show  that  the  writing  executed  by  the  defendant 
is  not  a  deed  by  any  legal  construction  or  effect.  10  Mass. 
274. 

The  defence  of  the  deed  being  without  original  consider- 
ation, cannot  be  made  to  a  specialty  either  at  common  law 
or  under  the  equable  plea  of  set-offs  (or  in  equity).  The  seal 
imports  a  consideration  (see  seal),  and  a  party  cannot  avoid 
his  solemn  obligation  under  seal  upon  the  ground  of  a  want  of 
consideration.  That  inquiry  is  precluded  by  the  very  nature 
of  the  instrument.  23  Gratt.  751.  At  law,  tlie  defendant  can- 
not avoid  a  solemn  deed  on  the  ground  of  a  want  of  considera- 
tion. That  inquiry  is  precluded  by  the  very  nature  of  the 
instrument.     13  Johns.  R.  431. 

Grantees  assent  to  delivery.    6  Va,  L.  Eeg.  798. 


T8  Legal    Aphoeisms.    . 

Technical  words  of  a  quit-claim  deed  are  "remise,  release 
and  forever  quit  claim." 

"Whether  a  writing  is  a  deed  or  a  will.    10  Gratt.  324. 
A  deed  that  is  intended  and  made  for  one  purpose  may 
enure  to  another ;   for  if  it  will  not  take  effect  in  the  way  it  is 
intended,  it  may  take  effect  in  another.     8"  Pick.  153. 

When  a  seal  is  omitted  by  accident  or  mistake,  equity  will 
give  relief  to  the  grantee.  109  U.  S.  349  (cited,  also,  as  Ber- 
nard's Tp.  V.  Stebbins)  ;  34  S.  Ca.  416,  s.  c. ;  13  S.  E.  E.  624. 

Conveyance  to  A.  B.  "Trustee,"  the  addition  "Trustee"  is 
sufficient  to  put  a  juirchaser  from  A.  B.  on  inquiry.  95  U.  S. 
576;  101  111.  270. 

Inconsistent  Descriptions  in  a  Deed. — If  lands  are  de- 
scribed by  lot  number,  and  also  bv  meter  and  bounds,  and 
grantor  owns  land  answering  to  one  description  and  not  to  the 
other,  the  description  of  the  land  he  owns  will  be  taken  to  be 
the  true  one.    1  Greenl.  Ev.,  sec.  301,  and  note. 

The  surrender  or  destruction  of  a  deed  of  lands  will  not 
operate  to  revest  the  grantor  with  the  title.  Raynor  v.  Wil- 
son, 6  Hill  469.  In  a  note  to  the  original  edition,  published 
in  1846,  it  is  said:  There  are  a  few  cases,  however,  which 
hold  that  the  destruction  of  a  title  deed  may,  under  certain 
circumstances,  operate  to  revest  the  estate.  Thus,  where  A, 
being  seised  and  possessed  of  land  under  an  unrecorded  deed 
from  B,  contracted  to  sell  to  C,  and  for  that  purpose  cancelled 
B's  deed,  who  at  A's  request  made  a  new  conveyance  to  C : 
held,  that  C's  title  was  valid  (Com.  v.  Dudley,  10  Mass.  403). 
The  same  doctrine  was  recog-nized  and  acted  upon  in  ITol- 
brook  V.  Terrell  (9  Pick.  105),  and  in  Tomson  v.  Ward  (1  K 
H.  9).     See,  also,  Farrar  v.  Earrar  (4  Id.  191)  ;  Chelsey  v. 


Legal    Apilukisms,  TO 

Frost  (1  Id.  1-1-5);  Bamtt  v.  Tlinnidikc  (1  Grooiil.  R.  73). 
In  Farrar  v.  Farrar,  supra,  the  learned  judi>e  who  delivered 
the  opinion  of  the  court  conceded  "that  the  cancelling  of  a 
deed  does  not   revest  prt.perty  which  has  once  passed  under 
it;"  and,  as  to  the  cases  of  Tomson  v.  Ward  and  Com.  v.  Dud- 
ley, be  observed:  "The  true  ground  on  which  these  decisions 
are  to  ,be  supported  is,  that  the  grantee  having  voluntarily 
and  without  any  misapprehension  or  mistake,  consented  to 
the  destruction  of  the  deed,  with  a  view  to  revest  the  title, 
neither  he  nor  any  other    person  .claiming  by  a  title    subse- 
quently derived  from  him,  is  to  be  permitted  to  show  the  con- 
tents of  the  deed  so  destroyed,  by  parol  evidence.     So,  that 
there  being  no  competent  evidence  that  the  land  ever  passed, 
the  title  is  to  be  considered  as  having  always  remained  in  the 
grantor." 

With  the  exception  of  the  above  decisions,  presenting  it  is 
believed  a  somewhat  novel  application  of  the  doctrine  of 
estoppel  in  pais,  the  great  current  of  authority  will  be  found 
in  accordance  with  the  case  reported  in  the  text.  See  Jackson 
V.  Chase,  2  Johns  R.  87 ;  Lewis  v.  Payne,  8  Cow  75 ;  Jackson 
V.  Gould,  7  Wend.  306;  Botsford  v.  Morehouse,  4  Com.  K. 
550;  Gilbert  v.  Buckley,  5  Id.  2G2;  Coe  v.  Turner,  Id.  86; 
Marshall  v.  Fiske,  0  Mass.  24;  Chessman  v.  Whitemore,  23 
Pick.  234;  and  citing,  in  addition,  1  Shep.  Touch.  141  (Pres- 
ton's Ed.)  ;  Bull's  X.  P.  2C.T;  3  Preston  on  Abs.  103;  Gilb. 
Ev.  Ill,  112,  and  ten  English  decisions. 

Deeds  of  Tiust. 
Both  deeds  of  trust  and  mortgages  are  regarded  in  iquity 
as  mere  securities  for  the  debt,  and  whenever  the  debt  is  as- 
signed, the  deed  of  trust  or  mortgage  is  assigned  or  trans- 


80  Legal   Aphorisms. 

ferred  with  it  by  operation  of  law.  27  Gratt.  837;  76  Va. 
499.  The  same  principles  apply  to  the  vendor's  lien,  result- 
ing from  the  retention  of  the  legal  title.  25  Gratt.  453 ;  27 
Gratt.  837.  The  assignee  has  three  remedies:  An  absolute 
right  to  resort  to  the  debtor  himself ;  second,  to  the  lien  upon 
the  land;  and,  third,  contingently  to  the  assignor  himself. 
The  loss  of  the  latter  remedy,  by  the  want  of  due  diligence, 
can  n(3  more  affect  the  recourse  to  the  land  than  it  can  affect 
the  risht  of  reverting  to  the  debtor  himself.  The  assignment 
of  the  bond  (or  note)  is  ipso  facto  an  assignment  of  the  lien. 
Having  once  vested  by  the  assignment,  that  lien  is  not  divest- 
ed by  the  failure  to  sue  the  debtor.  The  assignee,  having  tAvo 
remedies,  both  absolute  and  undoubted,  may  resort  to  either. 
25  Gratt.  457. 

Nobody  ever  contended  that  permanent  building,  erected 
by  the  mortgagor,  or  at  his  expense,  could  be  removed  by  him, 
or  that  the  mortgagee  could  be  compelled  to  account  for  them, 
or  the  proceeds  of  the  sale  of  them,  at  least  until  the  mortgage 
debt  was  fully  paid.  There  is  no  difference  in  this  respect  be- 
tween a  deed  of  trust  and  a  mortgage,  but  the  principle  is 
equally  applicable  to  both.     23  Gratt.  290. 

Deed  of  trust  to  secure  future  advances.  29  Gratt.  483. 
One  may  not  only  convey  or  transfer  a  chose  in  action  or  any 
other  property  to  secure  an  existing  indebtedness,  but  it  is 
also  well  settled  that  he  may  likewise  do  so  for  the  purpose  of 
securino-  future  loans  and  advances.  (Citing  authorities.)  93 
Va.  537;  101  Va.  269.  Priorities  of  liens  in  such  cases.  6 
Va.  L.  Reg.  632. 

When  deed  of  trust  provides  for  sale  at  auction,  the  trus- 
tee cannot  sell  privately.   1  Peters  145. 


Legal   ApiiORiSMS.  81 

Form  of  deed  of  trust  on  real  and  personal  property.  7 
Gratt.  27. 

Delivery. 

The  term  ''delivery"  is  used  in  the  law  of  sales  in  very 
different  senses.  It  is  used  in  turn  to  denote  transfer  of  title 
and  transfer  of  possession ;  and  where  the  parties  have  agreed, 
and  the  specific  articles  are  appropriated  and  accepted,  then, 
independently  of  the  statute  of  frauds,  it  is  often  said,  there  is 
sufficient  delivery  to  pass  the  title,  although  there  may  be  no 
transfer  of  possession.  And  this  must  be,  so,  in  order  to  be 
consistent  with  the  lien  which  remains  to  the  vendor  for  the 
price.  2  Kent  Com.  (6  Ed.)  492 ;  Simmons  v.  Swift,  5  B.  & 
C.  857;  106  Mass.  433. 

What  delivery  to  vendee  will  sustain  his  right  against 
creditors  of  vendor,  and  subsequent  purchases  from  him.  2 
Eob.  Pr.  510 ;  2  Pick.  601. 

Demand.     See  Request. 

Demurrer. 

Instance  of  filing  after  pleading  in  bar  to  the  action.  30 
Gratt.  7.  The  proper  course  would  seem  to  be  to  move  the 
court  to  be  allowed  to  withdraw  the  plea  or  answer  and  then 
demur.    90  Va.  797. 

It  is  a  cardinal  rule  of  the  law  of  pleading  that  a  demur- 
rer admits  only  such  facts  as  are  sufficiently  or  well  pleaded. 
It  does  not  admit  that  the  construction  of  a  written  instru- 
ment as  averred  in  the  pleading,  when  the  instrument  is  set 
-forth  in  the  pleading,  and  can  be  inspected,  is  the  true  one; 
nor  that  the  purpose  ascribed  to  the  parties  thereto,  when  the 
same  is  not  justified  by  the  language,  is  correct;  nor  that  a 
parol  iiiulerstanding,  which  varies  or  contradicts  the  written 


82  Legal    Aphorisms. 

instrument  set  out  in  the  pleading  and  on  which  it  is  founded, 
is  competent  or  admissible.   95  Va.  123. 

An  allegation  of  the  pleader's  conclusion  of  law  from 
facts  pleaded  is  not  traversable,  and  is  not  admitted  by  de- 
murrer. It  need  not  be  made ;  and  if  made,  it  may  be  rejected 
as  surplusage.     137  Mass.  121. 

On  demurrer  there  is  no  enquiry  about  collateral  facts; 
the  only  question  is,  whether  the  pleading  is  good  upon  its 
face.     21  Wend.  340. 

Form  of  demurrer  to  bill  in  chancery.    See  Chancery,  P. 

&P. 

Form  of  demurrer  to  a  plea  at  law  is  ''that  the  said  plea 
and  the  matter  thereof  are  not  sufficient  in  law,  to  bar  or 
preclude  the  plaintiff's  action"  (or  in  the  form  prescribed  by 
statute.  Y.  C.  3271).  It  admits  the  truth  of  the  plea.  3 
Eand.  61. 

Sustaining  or  overruling  a  demurrer  is  not  a  final  judg- 
ment and,  unless  it  adjudges  the  principles  of  the  cause,  there 
is  no  writ  of  error  lies  until  there  is  a  judgment  of  dismissal. 
98  Va.  276 ;  Id.  256 ;  6  Va.  L.  Reg.  41  and  note. 

Demukkek  to  Evidence. 

Though  called  a  demurrer  to  evidence,  is  essentially  a 
demurrer  to  the  facts  shown  in  evidence.    Gould  PI.  47. 

With  respect  to  the  power  of  the  court  to  compel  joinder 
in  denmrrer.    12  Va.  L.  Reg.  363;  23  Gratt.  636. 

Verdict. — Should  the  jury  return  a  verdict,  stating,  that 
court  shall  be  of  opinion  that  the  matter  shown  in  evidence 
is  sufficient  to  maintain  the  issue  on  the  part  of  the  plaintiff, 
they  assess  the  damages  to  a  sum  specified  by  them.  And,  if 
in  their  opinion,  the  plaintiff"  should  be  allowed  interest  in 


Legal    Aphorisms.  83 

the  event  of  his  recovery,  they  will  go  on  to  fix  the  time  at 
which  such  interest  shall  commence.  In  detinue,  the  condi- 
tional verdict  should  conform  to  the  nature  of  the  action.  1 
Rob.  (old)  Pr.  371.  But  see  Biggar  v.  Alderson,  1  H.  &  M. 
54.  When  the  only  pleas  are  under  the  statute  allowing  equit- 
able set  off,  the  form  of  judgment  should  be:  "We,  the  jury, 
u[)on  the  issues  joined,  find  for  the  defendant  and  assess  his 
damages  at  a  stated  sum,  subject  to  the  opiniou  of  the  court 
ujDon  the  plaintiff's  demurrer  to  the  evidence ;  but  if,  upon  the 
demurrer  to  the  evidence,  the  law  be  with  the  plaintiff,  then 
we  find  for  the  plaintiff  the  sum  ascertained. to  be  due  him." 
99  Va.  490. 

The  language  of  the  adjudged  cases  on  this  subject  is  very 
strong  to  show  that  the  court  will  be  extremely  liberal  in  their 
inferences,  where  the  party,  by  demurring,  will  take  the 
question  from  the  proper  tribunal.  It  is  a  course  of  practice, 
generally  speaking,  that  is  not  calculated  to  promote  the  ends 
of  justice.   27  Graft.  671. 

When  the  question  is,  whether  or  no  a  fact  ought  to  be 
taken  as  established  by  the  evidence,  either  directly  or  infer- 
entially,  in  favor  of  the  demurree,  I  do  not  know  a  juster  test 
than  would  be  furnished  by  the  enquiry,  would  the  court  set 
aside  the  verdict,  had  the  jury  on  the  evidence  found  the 
facts.  If  the  verdict  so  finding  the  fact  would  not  be  set  aside, 
it  ought  to  be  considered  as  established  by  the  evidence  de- 
murred to.  23  Gratt.  039.  And  when  the  juiy  upon  the  facts 
might  have  found  for  the  demurree,  the  court  u^wn  the  de- 
fendant's demun-cr  to  the  evidence,  must  so  find.  103  Va. 
104;  104  Va.  643-4;  Idem.  617-18. 


84  Legal   Aphoeisms. 

Depositions. 

Depositions  should  be  taken  out  and  read  by  the  jury.  11 
Gratt.  404. 

Ex  joarte  affidavit  taken  without  notice  and  read  as  a  depo- 
sition when  not  objected  to.     25  Gratt,  134. 

IIoic  to  make  the  Record  for  Appeal  show  the  actions  of 
the  Court  in  passing  upon  Exceptions. — A  bill  of  exception 
to  the  action  of  the  court  in  overruling  a  motion  to  exclude 
certain  evidence  in  which  the  evidence  is  set  out,  proceeds  as 
follows :  The  plaintiffs,  by  counsel,  at  the  time  of  the  taking 
of  the  depositions  of  A.  B.  and  C.  D.,  noted  on  the  face  of 
said  depositions  sundry  exceptions  to  questions  and  answers 
being  propounded  and  answered  by  the  witnesses,  respec- 
tively, and  also  to  the  introduction  of  the  contract  herein  be- 
fore referred  to,  as  evidence;  and  also  to  said  depositions, 
and,  at  the  time  of  the  hearing  of  this  cause,  all  of  these  ex- 
ceptions were  insisted  on  by  the  counsel  for  the  plaintiffs,  but 
(were)  overruled  by  the  court. 

Descriptio  Personae. 

In  New  York,  whether  a  note  be  in  this  form:  "1,  J.  F., 
president  of  the  M.  F.  I.  Co.,  promise  to  pay,  &c.,  J.  F."  or 
be  in  this  form:  ''I  promise  to  pay,  &c.,  J.  F.,  president  of 
the  M.  F.  I.  Co."— that  is  to  say,  whether  the  president  of 
the  company  be  expressed  in  the  body  of  the  instrument,  or 
only  in  the  addition  to  the  signature,  it  is  considered  in  either 
case  the  note  is  the  note,  not  of  the  company,  but  of  J.  F. 
individually.  Barker  v.  Mechanic  Ins.  Co.  3  Wend.  98. 
And  where  a  bill  of  exchange  was  addressed  to  ^'J.  R.  L., 
president  R.  M.  Co.,"  and  accepted  by  writing  his  name  with 


Legal   Aphorisms.  85 


i) 


that  addition,  an  action  was  sustained  against  the  acceptor 
individually;  the  addition  was  taken  as  descriptive  of  the 
person  rather  than  as  qualifying  the  obligation  which  he  as- 
sumed. Moss  V.  Livingston,  4  Comstock  208 ;  3  Rob.  Pr.  63. 
An  agent  or  executor  who  covenants  in  his  own  name,  and 
yet  describes  himself  as  agent  or  executor,  is  personally  lia- 
ble, for  the  obvious  reason  that  the  one  has  no  principal  to 
bind  and  the  other  substitutes  himself  for  his  principal. 
Duval  V.  Craig,  2  Wheat.  45.  And  the  same  rule  applies  to 
the  contracts  of  guardians,  trustees,  and  all  other  persons 
acting  en  autre  droit;  the  addition  to  the  signature  of  the 
word  "agent,"  "executor,"  "trustee,"  etc.,  being  regarded  as  a 
mere  descriptio  personae,  unless,  indeed,  it  api>ear  that  the 
party  so  signing  his  name  was  recognized  as  contracting  in 
his  representative  character  when  the  contract  was  made,  in 
which  case  he  will  not  be  personally  bound.  Taylor  v.  Davis, 
110  U.  S.  330 ;  Metcalf  v.  Williams,  104  U.  S.  933 ;  Staples 
V.  Staples,  8-5  Va.  76 ;  1  Pars.  Cont.  128 ;  85  Va.  605. 

An  action  brought  in  the  name  of  A.  B.,  cashier  of  a  cer- 
tain bank,  is  an  action  brought  by  A.  B.  individmdly,  and  the 
phrase  "cashier,"  kc,  is  mere  surplusage.  4  Rand.  359.  And 
in  a  suit  in  which  complainant  described  himself  as  giiardian 
of,  &c.,the  court  says, the  words,  Guardian  of  R.H.,  an  infant 
under  the  age  of  21  years,"  are  mere  descriptio  personae,  and 
do  not  change  the  personal  character  of  the  suit."  9  Gratt. 
276. 

And  so  a  declaration  which  commenced  thus:  B.  com- 
plains of  IL,  president  of,  <&:c.,  and  then  proceeded  to  allege 
that  the  defendant  became  indebted,  promised  to  pay,  kc,  but 
afterwards  refused :  Held,  not  a  declaration  against  the  bank. 


86  Legal   Aphoeisms. 

but  against  H.  individually,  the  words  added  to  the  name 
being  mere  descriptio  personae.   6  Hill  240. 

It  is  safer,  when  proceeding  for  or  against  an  executor  or 
administrator  to  insert  "as"  before  the  word  "executor"'  or 
"administrator."  The  omission  of  that  word  may  render  the 
character  of  the  proceeding  equivocal.    10  Gratt.  280. 

Detinue. 

Detinue  and  debt  in  the  detinet  may  both  be  maintained 
for  chattels.  The  difference  between  debt  and  detinue  as  to 
chattels  is  this :  If  I  deliver  to  J.  S.  (or  he  becomes  possessed 
of)  chattels  which  he  is  bound  to  return  to  me,  and  does  not, 
detinue  is  the  proper  form ;  whereas,  if  a  man  contract  to 
deliver  (to)  me  a  horse  or  a  fat  capon  or  the  like,  debt  is  the 
proper  form  of  action  to  enforce  the  obligation.  Maule,  J.,  15 
Com.  Bench  (6  J.  Scott)  303.  Lord  Coke  says:  "If  I  grant 
to  give  a  man  40s.  or  a  robe,  &c.,  after  Easter  he  may  bring 
debt  for  the  one  or  the  other.  Id.  7  Man,  Gr.  &  Scott  48,  note. 
3  Rob.  Pr.  468. 

When  A  wrongfully  takes  the  proj^erty  of  B  and  sells  it, 
B  may  bring  trespass  (trespass  on  the  case)  trover,  detinue  or 
assumpsit  for  money  had  and  received,  against  A  at  his 
election  ;  but  having  elected  one  of  these  forms  of  action,  and 
prosecuted  it  to  judg-ment,  he  cannot  then  abandon  it  and 
bring  another.  Trespass  (or  trespass  on  the  case)  compre- 
hends the  whole  injury,  as  well  the  wrongful  taking  as  the 
wrongful  detention  or  conversion,  and  the  value  of  the  prop- 
ert^i,  unless  it  be  restored.  By  bringing  detinue  or  trover, 
the  plaintiff  waives  all  claim  for  the  wrongful  taking  of  the 
property ;   and  by  bringing  assumpsit  he  also  waives  all  claim 


LeGAI.    Al'HORISMS.  87 

for  the  wrongful  detention  and  conversion,  affirms  the  sale, 
and  makes  the  proceeds  of  it  money  bad  and  received  to  his 
use.     It  would  be  inconsistent  to  permit  him,  after  electing 
and  prosecuting  to  judgment  either  of  the  three  last  named 
actions,  and  especially  the  last,  to  resort  to  the  first.   17  Gratt. 
132 ;  6  Eand.  457 ;  147  Mass.  344.     So  if  a  man  take  the 
goods  of  another  and  sell  them,  the  owner  may  waive  the  tres- 
pass and  sue  him  for  money  had  and  received.    16  Gratt.  233. 
The  plea  of  non  detinet  puts  in  issue  the  title  of  the  plain- 
tiff, as  well  as  the  act  of  detention.   But  in  such  case  the  ver- 
dict does  not  operate  as  an  estoppel,  unless  the  ground  upon 
which  it  was  rendered  appear  from  the  record  or  by  extrinsic 
evidence.   20  Gratt.  360. 

In  an  action  of  detinue,  where  the  sole  plea  interposed 
is  non-detinet,  and  the  property  sued  for  dies  during  the  pen- 
dency of  the  suit  without  fault  of  the  defendant,  the  plaintiff 
may  recover  the  alternate  value  of  the  property,  unless  the 
matter  is  brought  to  the  attention  of  the  court  by  a  plea  puis 
darrein  continuance.  Arthur  v.  Ingels,  et  al.  12  S.  E.  (W. 
Va.)  872;  or  it  would  seem,  "to  the  further  maintenance  of 
the  suit  if  death  occurs  before  plea  pleaded.  6  Rob.  Pr.  591 ; 
10  Gratt.  569 ;  5  Hill  393. 

Form  of  Verdict  for  Plaint  iff.— We,  the  jury,  find  upon 
the  issue  joined,  that  the  defendant  doth  detain  the  slaves, 
Tab,  Betty  and  Jack,  in  the  declaration  mentioned,  in  man- 
ner and  form  as  the  plaintiff  against  him  hath  complained, 
and  that  the  said  Tab  is  of  the  value  of  $200,  and  the  said 
Betty  and  Jack  each  of  the  value  of  $300 ;  and  they  do  assess 
the  damages  which  the  ])laiiitiff  hath  sustained  by  occa- 
sion of  the  detention  of  said  slaves  to  $ ,  besides  his 

costs.     Rob.  Forms,  ]\  i:'.l  ;  S  Leigh  81 ;  4  Minor  641. 


88  Legal   Aphokisms. 

Devisavit  vel  'Hon. 

Order  of  the  court  directing  the  trial  and  indicating  the 
issue :  The  court  ordered  that  a  jury  be  empannelled  at  its  bar 
to  determine  whether  or  not  said  paper  was  the  true  last  will 
and  testament  of  M.  W.,  deceased,  and  directed  that,  upon 
the  trial  of  the  issue,  the  defendants  in  the  bill  should  occupy 
the  position  of  plaintiffs  and  the  complainant  the  position  of 
defendant.    96  Va.  715. 

Form  of  Averment  in  Bill.    Id.  713. 

Dismissal  of  suit  "agreed" — "without  prejudice" — "sim- 
ply dismissing  without  reservation."     See  Chancery,  P.  &  P. 

Disclaimer.    See  Chancery  Pr.  and  PI. 

Discontinuance. 

A  discontinuance  is  somewhat  similar  to  a  non-suit;  for 
when  the  plaintiff  leaves  a  chasm  in  the  proceedings  of  his 
cause,  as  by  not  continuing  the  process  regularly  from  day  to 
day  and  time  to  time,  as  he  ought  to  do,  the  suit  is  discon- 
tinued, and  the  defendant  is  no  longer  bound  to  attend ;  but 
the  plaintiff  must  begin  again  by  suing  out  a  new  original, 
usually  paying  costs  to  his  antagonist.  25  Gratt.  390,  quoting 
from  Tucker's  Com.  But  in  a  later  case,  where  the  action 
was  against  three  parties,  and  F.  one  of  them,  pleaded  ;  and 
on  motion  of  the  plaintiff,  by  counsel,  the  cause  is  discon- 
tinued as  to  F.,  and  judgment  by  default  taken  against  the 
other  defendants,  the  court  say:  The  term  "discontinuance" 
is  not  applied  in  pleading  merely  to  those  cases  in  which  the 
plaintiff  leaves  a  chasm  in  the  proceedings  in  his  cause.  The 
word  is  also  frequently  used  to  indicate  that  the  "plaintiff 
discontinues  his  action."     The  judgment  in  such  case  is  no 


Legal    Aimiokisms.  89 

more  than  an  agreement  not  to  proceed  further  in  that  snit 
against  that  particular  defendant.  Such  judgment  is  not  a 
bar  to  any  further  action  against  the  same  party.  And  this  is 
precisely  the  effect  of  the  order  of  discontinuance  entered  in 
the  present  case.  Coifman  &  Richardson  v.  Russell,  4  Munf. 
207,  is  a  direct  authority  upon  this  point.     27  Gratt.  257. 

Forms  of  orders.    Rob.  Forms  DO. 

DiSTKESs.    See  Landlord  and  Tenant. 

]N"one  for  interest  on  rent  due.  "And  where  the  owner  of 
the  rent  proceeds  by  distress,  to  recover  the  same,  he  is  not 
entitled  to  distrain  for  interest  thereon ;  especially  in  a  case 
where  there  is  no  agreement  that  the  tenant  shall  pay  interest, 
and  that  the  landlord  mav  distrain  for  that  as  well  as  for  the 
rent  itself."  8  Paige  Chy.  R.  (X.  Y.)  220;  9  A.  &  E.  Ency. 
Law  (Xew  Ed.)  024;  and  sec.  2787  V.  C.  does  not  change 
this  common  law. 

An  acceptance  by  a  landlord  of  a  bond  for  rent  is  no  ex- 
tinguishment of  the  rent,  because  the  rent,  issuing  out  of  the 
realty  is  a  debt  of  as  high  a  nature  as  a  specialty  claim.  1 
Chitty.  PI.  (7  Am.  Ed.)  11!»,  and  hence  there  is  no  merger; 
see,  also,  4  Minor  148. 

What  is  meant  by  distress? 

Mr.  Minor  says,  4  Minor,  p.  122,  Distress  (district io)  is 
the  sunmiary  taking  of  a  personal  chattel  out  of  the  possession 
of  the  wrong-doer,  into  the  custody"  of  the  party  injured,  in 
order  to  procure  a  satisfaction  for  the  wrong  committed,  3 
Bl.  Com.  5  N.  (8)  ;  Bac.  Ab.  Distress.— But  it  seems  to  have 
been  held  in  the  cases  of  Tennent  v.  Field,  *.>2  E.  C.  L.  336 
and  Wood  v.  Nunn,15  Id.  340,  that  the  levy  of  a  distress  war- 
rant is  governed  by  the  same  rules  as  apply  to  the  levy  of  an 


^0  Legal   Aphorisms. 

execution  or  attachment,  i.  e.,  that  the  levy  is  complete  if  the 
property  comes  within  the  view  and  power  of  the  officer. 

Divorce, 

Form  of  decree  of  divorce  a  vinculo  matrimonii.  27  Gratt. 
599 

Dower. 

An  inchoate  right  of  dower  is  an  existing  incumbrance  on 
land,  within  the  meaning  of  the  covenant  against  incum- 
brances. Shearer  v.  Eanger,  39  Mass.  447.  It  is  in  the 
nature  of  a  contingent  lien  or  incumbrance  upon  the  realty. 
Staples,  J.,  33  Gratt.  285. 

How  to  compute  the  present  value  of  a  dower  right — - 
vested  and  contingent.    3  Va.  L.  Reg.  69. 

Drunkenness, 

As  a  defence,  and  in  this  case,  considered  along  with 
other  circumstances.     27  Gratt.  821. 

Election, 

Knowledge  of  all  the  facts  necessary,  to  conclude  party 
by  having  brought  action.  121  ^\  Y.  161,  S.  C. ;  24  N.  E. 
272 ;  156  Mass,  193  S.  C. ;  30  N.  E.  692.  And  the  same 
cases  assert  the  proposition  that:  The  fact  that  a  party 
wrongly  supposes  that  he  has  two  such  rights  and  attempts 
to  choose  the  one  to  which  he  is  not  entitled,  is  not  enough 
to  prevent  his  exercising  the  other,  if  he  is  entitled  to  that. 

Bringing  action  ex  contractu  against  some  of  the  wrong 
doers  is  a  final  election  to  treat  the  transaction  as  a  sale.  121 
N.  y.  161,  S.  C.  24  K  E.  272. 


Legal    Aphorisms.  01 

Equity. 

It  is  the  constant  object  of  courts  of  equity  to  do  complete 
justice,  by  deciding  and  settling  the  rights  of  all  persons  in- 
terested in  the  subject  of  the  suit,  so  as  to  make  the  perform- 
ance of  the  order  of  the  court  perfectly  safe  to  all  those  who 
are  compelled  to  obey  it,  and  to  prevent  future  litigation.    4 
Eand.  452;  99  Va,  154.     Parties    cannot  by  their  express 
agreement,  any  more  than  by  remaining  silent,  require  courts 
to  proceed  with  causes  where  it  is  evident  that  for  lack  of 
proper  issues  or  proper  parties  final  results  cannot  be  accom- 
plished, and  injustice  and  future  litigation  are  the  probable 
consequences.     See  opinion  of  Judge  Bouldin  in  Armentrout 
V.  Gibbons,  25  Gratt.  376 ;  99  Va.  154.     It  is  the  policy  of 
courts  of  equity  not  to  multiply,  but  to  put  an  end  to  litiga- 
tion.    Where  the  record  shews  proper  parties,  and  the  sub- 
stantial case  no  court,  and,  least  of  all,  an  appellate  court, 
will  render  such  a  decision  as  to  leave  the  matter  in  contro- 
versy still  a  subject  of  litigation.    22  Gratt.  140.   While  there 
is  some  conflict  in  the  English    cases    and  in  some  of    the 
American  decisions,  as  to  how  far  courts  of  equity  will  enter- 
tain bills  for  compensation  or  damages,  except  as  incidental 
to  other  relief,  it  seems  to  be  now  well  settled,  that  where  a 
court  of  equity  clearly  has  jurisdiction  of  the  subject  of  the 
controversy,  jurisdiction  for  compensation  or  damages  will 
attach  where  it  is  ancillary- to  the  relief  prayed  for.     2  Story 
Eq. ;  22  Gratt.  820. 

It  is  a  rule,  founded  on  the  principle  of  preventing  un- 
necessarv  and  vexatious  litiuatioii,  that  n  plaintiff  shall  not 
be  allowed  to  split  up  a  single  cause  of  action,  so  as  to  make 
it  the  subject  of  several  suits.     On  this  ground,  a  court  of 


92  Legal    Aphokisms. 

equity  will  not  allow  a  bill  to  be  brought  for  part  of  a  matter 
onlj,  when  the  whole  is  the  proper  subject  of  one  suit.  Thus, 
it  will  not  permit  a  party  to  bring  a  bill  for  one  part  of  one 
entire  account,  but  will  compel  him  to  unite  the  whole  in  one 
suit ;  for,  otherwise,  he  might  split  it  up  into  various  suits, 
and  thus  promote  the  most  oppressive  litigation.  Story  Eq. 
PI.  287;  19Gratt.  67. 

A  bill  which,  when  read  in  connection  with  the  exhibits 
filed,  and  which  are  made  a  part  of  it,  states  the  complain- 
ants' case  with  such  a  degree  of  certainty  and  consistency  as 
would  enable  the  defendant:s  to  make  defence  and  the  court 
to  decree  upon  the  case  made,  is  sufficient.   100  Ya.  182. 

It  is  a  maxim  of  equity  that  the  court  will  not  interfere 
in  favor  of  a  mere  volunteer.  The  mere  intention  to  be- 
stow a  bounty,  however  clearly  proved,  is  not  of  itself  suffi- 
cient to  create  a  binding  engagement :  some  consideration  is 
essential  to  the  validity  of  the  act.     10  Gratt.  262. 

Judgment  creditor  suino-  to  enforce  lien  on  real  estate 
need  not  allege  or  prove  a  return  of  no  property  found  upon 
an  execution  as  a  condition  to  filing  his  bill.  Freedman's  Sav- 
ing Tr.  Co.  V.  Earle,  110  U.  S.  710 ;  28  L.  C.  P.  Co.  301, 
303;  Lewin  on  Trusts,  795;  100  Va.  181.  See,  also,  30 
Gratt.  526 ;  Idem.  545.  But  it  must  be  borne  in  mind  that 
before  the  judgment  creditor,  who  is  otherwise  unsecured,  can 
come  into  equity  against  the  goods  and  chattels  of  his  debtor, 
except  where  the  statutes  allow,  must  first  take  out  execution 
and  cause  the  same  to  be  levied  or  returned.  2  Rob.  (old) 
Pr.  46. 

Courts  of  equity  have  no  more  right  than  courts  of  law  to 
change  the  contracts  of  parties.  18  Gratt.  169,  and  cases  cited. 


Legal   Aphorisms.  93 

In  matters  of  concurrent  jurisdiction,  it  has  been  said 
with  great  propriety  that  there  should  not  be  different  meas- 
ures of  redress  in  the  courts  of  law  and  equity.  2  Kob.  (old) 
Pr.  9. 

Many  instances  in  which  a  court  of  equity  held  parties 
concluded  bv  misconduct,  silence,  or  words  of  assurance.  12 
Pick.  44. 

Equity  of  Redemption. 

The  equity  of  redemption  of  the  mortgagor  is  descendible 
by  inheritance,  devisable  by  will,  and  alienable  by  deed,  pre- 
cisely as  if  it  were  an  absolute  estate  of  inheritance  at  law. 
21  Gratt.  121,  and  authorities  cited.  An  equity  of  redemp- 
tion in  personal  property  is  legal  assets.  17  Gratt.  308. 
Equity  of  redemption  reserved  to  the  husband  in  a  mortgage 
by  husband  and  wife  of  wife's  lands  creates  a  resulting  trust 
to  the  wife  after  the  objects  of  the  mortgage  have  been  satis- 
fied.   91  Va.  469,  and  authorities  cited. 

Erkoe, 
Courts  should  be  careful  when  an  error  to  the  prejudice 
of  a  litigant  is  established  to  decline  to  correct  it  upon  the 
idea  that  it  works  no  injury.  Presumably  all  error  is  preju- 
dicial, and  to  warrant  the  court  in  disregarding  established 
error  upon  the  theory  that  the  other  party  is  not  aggi'ieved 
thereby  it  should  be  made  very  clearly  to  appear  that  such  is 
the  fact.   Keith,  P.,  95  Ya.  789. 

Estates  of  Decedents. 
What  are  legal  and  what  equitable  assets — that  is,  assets 
which  a  creditor  cannot   reach  by   proceedings  at  law?     17 
Gratt.  305,  et  seq. 


94  Legal   Aphorisms. 

It  is  an  acknowledged  doctrine,  that  in  conflict  of  rights, 
those  arising  under  our  own  laws,  if  not  superseded  in  point 
of  time,  shall  take  precedence,  ^'majis  jus  nostrum  qiiam  jus 
alienum  servemums."  The  obligation  of  the  sovereign  to  en- 
force his  own  laws,  and  protect  his  own  subjects,  is  acknowl- 
edged to  be  paramount.   5  Pet.  526. 

The  remedies  of  a  creditor  against  a  decedent's  estate  are : 

(1)  An  action  at  law  against  the  personal  representative. 
2  Tuck.  Bl.  Comm.  112. 

(2)  A  suit  in  chancery  against  the  lien  or  devisee  for 
amount  of  estate  or  assets  for  which  he  is  liable.   V.  C.  2668. 

(3)  A  separate  bill  in  chancery  to  compel  payment  of  his 
individual  debt  out  of  the  funds  in  the  hands  of  the  personal 
representative. 

(4)  A  bill  in  behalf  of  himself  and  other  creditor  to  ascer- 
tain and  distribute  both  the  real  and  the  personal  estate.  As 
to  the  two  foregoing  remedies  see  Story's  Eq.  PI.  §§99-102. 

(5)  A  bill  of  discovery  against  the  personal  or  real  repre- 
sentative of  the  estate  of  a  decedent  to  discover  the  assets 
liable  to  the  payment  of  his  debts.  2  Tuck.  Bl.  Comm.  425 ; 
White  V.  Bannister,  1  Wash  (Va.)  168;  Duval  v.  Trent,  6 
Munf.  29 ;  Clarke  v.  Webb.  2  H.  &  M.  8 ;  Polling  v.  Huff- 
man, 19  S.  E.  (W.  Va.)  422. 

Estoppel. 

(1)  Equitable  estoppel  is  frequently  called  estoppel  in 
pais.   100  Va.  91. 

(2)  The  doctrine  of  estoppel,  as  a  general  rule,  applies 
only  between  parties  and  their  privies,  and  as  strangers  are 
not  bound  by  an  estoppel,  neither  can  they  take  advantage  of 
it.    Mauzy  v.  Sellars,  26  Gratt.  641 ;  28  Gratt.  437. 


Legal   Aphorisms.  05 

Estoppels  aro  odious  in  the  law,  and,  being  so,  they  ought 
not  to  be  aUowed,  unless  they  are  very  plainly  and  clearly 
made  out.  2  Phill.  Ev.  655.  The  law  of  estoppel  is  not  so 
unjust  or  absurd  as  it  has  been  too  much  the  custom  to  repre- 
sent.    1  Grecnl.  Ev.  sec.  22. 

''In  the  language  of  Judge  Gaston,  in  Jones  v.  Sassee,  1 
Dev.  &  Bat.  R.  4:64,  all  estoppels,  whether  estoppels  at  com- 
mon law,  or  equitable  estoppels,  are  founded  upon  the  great 
principles  of  morality  and  public  policy.     Their  purpose  is 
to  prevent  that  which  deals  in  duplicity  and  inconsistency,  and 
to  establish  some  evidence  as  so  conclusive  a  test  of  truth,  that 
it  shall  not  be  gainsaid.     But  as  the  effect  of  an  estoppel  may 
be  to  shut  out  the  real  truth  by  its  artificial  representative, 
estoppels,  whether  legal  or  equitable,  are  not  to  be  extended 
by  construction.     Xo  man  is  to  be  precluded  from  showing 
the  truth  of  his  claim  or  defence,  unless  it  be  forbidden  by  a 
positive  rule  of  law."    23  Graft.  321. 

Instances  of  estoppel  in  pais.  3  Hill  216;  4  Minor  1121. 
To  set  up  inconsistent  claims  or  defences.  Dan.  Chy.  Pr. 
385n  1 ;  48  L.  E.  A.  177 ;  1  Phil.  Ev.  739 ;  Sand's  Suit  in 
Eq.  325n,  272;  23  Graft.  370,  and  Michie's  note;  30  Gratt. 
652 ;  99  Va.  18 ;  Id.  627 ;  93  Va.  415 ;  Id.  245 ;  92  Va.  251 ; 
94  Va.  376 ;  5  Leigh  1 ;  76  Va.  225 ;  20  Gratt.  544;  Id.  552 ; 
2  Gratt.  493;  17  Gratt.  132;  Id.  160;  32  Gratt.  185;  6 
Eand.  457;  88  Va.  361;  20  Gratt.  544;  100  Va.  507;  22 
Gratt.  13;  88  Va.  t>63  ;  103  Va.  305;  92  Va.  245. 

(2)  A  party  is  not  bound  by  his  statement  of  the  legal 
consequences  of  the  facts  stated  by  him.     It  is  for  the  court 
to  judge  what  are  those  legal  consequences.     17  Gratt.  167. 
(1)  A  party  is  not  estopped,  when  erroneously  relying  on 


96  Legal   Aphorisms. 

two  inconsistent  rights,  by  first  attempting  to  rely  on  the 
wrong  one.  156  Mass.  193,  S.  C. ;  30  N.  E.  K.  692 ;  121  N. 
Y.  161,  S.  C. ;  24  K  E.  E.  272. 

Vendee  Cannot  Deny  tlie  Title  of  His  Vendor. — No  matter 
how  destitute  of  title  the  landlord  may  be,  or  how  clear  the 
title  of  a  stranger  may  be  in  the  land,  the  tenant  cannot  deny 
the  title  of  the  former,  nor  affirm  that  of  the  latter  in  his 
defence  of  the  landlord's  action  for  the  land.  The  same  prin- 
ciple applies  to  the  relation  of  vendor  and  vendee.  The  latter 
is  estopped  from  denying  the  title  of  the  former  in  an  action 
at  law  to  recover  possession  of  the  subject  of  the  sale.  23 
Gratt.  360. 

Estopped  hy  Conduct. — By  her  conduct,  as  disclosed  by 
the  record,  the  appellant  is  estopped  from  questioning  the 
verity  of  the  record.  Her  evident  knowledge  of  the  pendency 
of  this  suit  and  its  object,  her  seeming  acquiescence,  and  her 
delay  and  refusal  to  speak,  though  not  served  with  process  in 
the  regular  way,  makes  it  proper  for  her  to  remain  silent,  now 
that  others  have  obtained  rights  while  she  was  standing  by  in 
silence,  if  not  in  actual  acquiescence.  It  was  not  only  compe- 
tent for  her  to  speak  in  time  and  be  made  a  party  if  she  had 
not  been,  but  it  was  her  duty.    78  Va.  775. 

Evidence. 

It  is  desirable,  as  far  as  possible,  that  irrelevant  and  im- 
proper evidence  shall  not  be  heard  by  the  jury,  as  it  may  not 
be  possible  entirely  to  remove  the  effect  of  it  by  its  subsequent 
exclusion.    14  Gratt.  456. 

All  testimony  upon  a  question  not  in  issue  is  irrelevant; 
and  it  is  competent  for  the  parties  to  object  to  its  introduc- 


Legal    Aphorisms.  97 

tioii,  or  to  move  to  exclude  it^  or  to  ask  the  court  to  instruct 
the  jiirv  In  disregard  it.  24  Gratt.  72.  But  see  11  Gratt.  000. 
But  all  evidence  proper  to  support  the  matter  put  in  issue  by 
the  pleadings  is  admissible.    Ci  Tfand.  12. 

It  often  happens  that  the  competency  of  eWdence  may 
depend  upon  the  existence  of  some  other  fact ;  whether  such 
fact  exists  is  a  preliminary  question,  to  be  decided  by  the  pre- 
siding judge.  His  decision  as  to  such  fact  cannot  be  revised; 
but  his  rulino-  as  matter  of  law  that  such  fact  renders  the  evi- 
dence  competent  or  incompetent  is  the  subject  of  revision; 
and,  upon  examination,  in  all  those  cases  in  which  the  admis- 
sion of  the  evidence  is  said  to  rest  in  the  discretion  of  the 
presiding  judge,  we  think  it  will  be  found  that  it  is  the  de- 
cision of  a  preliminary  fact  upon  which  the  finding  of  the 
jud^-e  is  conclusive,  and  which  fact  determines  the  compe- 
tency of  the  evidence.     129  Mass.  475. 

Testimony  based  upon  the  report  of  others  is  evidence,  at 
least  unless  objected  to  as  hearsay.  163  Mass.  404,  408,  409  ; 
Schlemmer  v.  By.  205  U.  S.  9 ;  but,  see  42  S.  E.  (Ga.)  492 ; 
and  8  Va.  L.  Beg.  511,  citing  10  Ark.  638. 

Prima  facie  evidence  of  a  fact  is  such  as,  in  judgment  of 
law,  is  sufhcient  to  establish  the  fact ;  and  if  not  rebutted, 
remains  sufficient  for  the  purpose.  The  jury  is  bound  to  con- 
sider it  in  that  light.  6  Bet.  632.  It  is  such  as  remains  suffi- 
cient, if  not  rebutted.     14  Pet.  334;  113  Mass.  6. 

A  report  of  the  decision  of  the  Supreme  Court  of  Ohio, 
given  in  evidence  to  prove  the  decision  of  that  court  in  con- 
struing the  effect  of  a  deed  of  assignment.  13  Gratt.  441. 
See,  also,  29  Gratt.  780. 

Omitting  to  produce  evidence  in  elucidation,  which  is  in 


98  Legal   Aphorisms. 

the  power  of  the  party  or  within  his  peculiar  knowledge,  shall 
be  holden  to  turn  every  doubt  against  him.  1  Stark.  Ev.  34 ; 
Cowen  &  Hill's  notes  to  Phil.  Ev.,  Vol.  1,  p.  602.  See,  also, 
32  Gratt.  649.  As  to  not  examining  available  witness,  see 
Witness. 

In  general,  when  a  record  is  to  be  given  in  evidence,  the 
whole  record  should  be  produced.  Thus  it  is  said  where  any 
record  is  exemplified,  the  whole  record  must  be  exemplified ; 
for  the  construction  must  be  taken  from  the  view  of  the  mat- 
ter taken  together.  3  Inst.  173 ;  3  Bac.  Ab.,  by  Bouvier  (Phil. 
Ed.  1852).  "Evidence"  E,  p.  536;  and  Chief  Baron  Comyn, 
says  ''the  whole  record  which  concerns  the  matter  in  question 
ought  to  be  produced."  4  Com.  Dig.  "Evidence"  A,  4,  p.  S9  ; 
2  Phil.  Ev.  188.  There  may  be  cases,  doubtless,  in  which  by 
way  of  exception  to  the  general  rule,  parts  of  the  record  have 
been  held  sufiicient  for  the  purpose  for  which  they  were  in- 
troduced; but  in  them  there  could  be  no  objection  to  the 
introduction  of  the  whole.     16  Gratt.  76. 

It  cannot  be  laid  down  as  a  universal  rule,  that  where 
written  evidence  of  a  fact  exists,  all  parol  evidence  of  the 
same  fact  must  be  excluded.  Keene  v.  Meade,  3  Pet.  7.  The 
mere  existence  of  written  evidence  shall  not  exclude  inde- 
pendent parol  evidence  to  prove  the  same  fact.  The  cases 
which  establish  this,  conflict  in  no  manner  with  the  principle 
that  where  superior  evidence  may  be  had,  such  superior  evi- 
dence must  be  produced.  If  a  witness  speaks  positively  as  to 
date  and  amount  of  a  payment,  and  the  jury  believe  him, 
such  testimony  cannot  be  considered  inferior  to  the  receipt. 
In  one  aspect  it  is  superior.  For  the  receipt,  when  produced, 
is  but  a  prima  facie  acknowledgment  that  the  money  has  been 


].i-:c;al    Aimioihsms.  00 

paid ;  and  tho  circumstances  under  which  it  was  obtained 
may  be  proved  by  a  witness  who  was  present  at  the  time  of 
giving-  it.  It  may  be  proved  that  the  receipt  was  fraudulently 
obtained;  and  then  the  receipt  will  amount  to  nothing,  and 
the  cause  will  rest  on  the  parol  evidence.  10  E.  C.  L,  137 ; 
1  Eob.  fold)  Pr.  305.  When  a  receipt  is  given  for  a  pay- 
ment, the  general  opinion  is  that  the  payment  may  be  proved 
as  well  by  parol  evidence  of  the  fact  as  by  the  production  and 
proof  of  the  receipt,  though  the  case  of  Handin's  Adm'r  v. 
Atkinson,  6  Eand.  574,  has  thrown  some  doubt  on  that  ques- 
tion in  this  State.  Moncure,  J.,  in  Bowles  v.  Elmore's  Adm'r, 
7  Gratt.  893. 
See  Chattels. 

Execution. 

How  Sheriff  to  Dispose  of  Money  Made  Under  Execution. 
The  form  of  the  writ  as  directed  by  the  act  of  Virginia, 
when  returnable  to  court,  is  that  the  money  shall  be  in  court 
on  the  return  day ;  and  there  appears  no  excuse  for  omitting 
this  duty,  unless  it  shall  have  been  paid  to  the  creditor.  The 
officer  may  certainly  make  such  payment  out  of  court,  if  no 
circumstance  occur  which  legally  obstructs  or  opposes  it,  such 
as  an  injunction  from  a  court  of  chancery  (in  which  case  by 
the  laws  of  Virginia,  the  monev  must  be  returned),  or  au 
execution  against  the  goods  and  chattels  of  the  person  to 
whom  the  money  in  his  hands  shall  be  payable.  In  the  latter 
case  it  is  still  duty  of  the  officer  to  obey  the  order  of  the  writ, 
and  bring  the  money  into  court,  there  to  be  disposed  of  as  the 
court  may  direct.  Opinion  of  the  court  in  Turner  v.  Fendall, 
1  Cranch  13(5 ;  1  Kob.  (old)  Pr.  533.  If  the  sheriff  has  in  his 
hands,  as  shcrijj .  money  belonging  to  the  defendant,  he  ought 


100  Legal    Aphokisms. 

to  bring  it  into  conrt,  and  leave  the  court  to  direct  the  appli- 
cation. 2  Tuck.  Com.  360-1;  Steele  v.  Brown,  2  Va.  Cases 
246 ;  Norris  v.  Cummej,  2  Rand.  330  &  seq. ;  4  Minor  1021. 

Power  of  Court  fo  Make  Proper  Disposition  of  Money. 
If  the  legal  and  equitable  right  to  the'money  so  brought 
into  court  be  in  a  person  against  whose    goods    and    chattels 
there  is  an  execution  in  the  hands  of  the  same  officer,  the 
court  may  direct    the    money  made  under  the  execution  in 
which  such  person  is  creditor,  to  be  paid  in  satisfaction  of  the 
execution  in  which  he  is  debtor.     Opinion  of  court  in  Turner 
V.  Fendall,  1  Cranch  137;  Steele  &  Co.  v.  Brown,  &c.,  gen. 
court.     2  Va.  Cases  246.     The  power  of  the  court  to  make 
such  order  is  not  confined  to  cases  where  sufficient  effects  o£ 
the  debtor  in  the  second  execution  cannot  otherwise  be  found 
to  satisfy  the  judgment.   Idem.  1  Rob.  (old)  Pr.  534. 
Levy  of,  how  made.   4  Va.  L.  Reg.  253. 
Where  partnership  effects  or  the  property  of  joint  tenants 
for  the  individual  debt  of  one  of  the  parties  are  levied  on,  the 
levy  must  be  on  the  whole,  at  least  on  so  much  as  that  the 
interest  of   the    individual  will  satisfy  the    debt,  if  so  much 
property  there  be.     4  Minor  1017.    In  1  Rob.  (old)  Pr.  526, 
it  is  said :  Where  there  is  judgment  against  one  only  of  two 
co-partners,  and  execution  against  the  goods  and  chattels  of 
that  co-partner  is  levied  upon  effects  held  by  him  in  co-part- 
nershi])  with  the  other,  the  sheriff  can  only  sell  an  undivided 
moiety  of  whatever  effects  the  execution  is  levied  on.   In  Hey- 
don  V.  Heydon,  1  Salk.  392,  it  appeared  that  Coleman  and 
Hey  don    were    co-partners,  and  a  judgment    was    recovered 
against  Coleman,  and  all  the  goods  both  of  Coleman  and  Hey- 


Legal   Aphorisms.  101 

don  wore  taken  in  execution.  .Held,  that  the  sheriff  must 
seize  all,  because  the  moieties  are  undivided ;  for  if  he  seize 
but  a  moiety  and  sell  that,  the  other  will  have  a  right  to  a 
moiety  of  that  moiety ;  but  he  must  seize  the  whole,  and  sell 
a  moiety  thereof,  undivided,  and  the  vendee  will  be  tenant  in 
common  with  the  other  partner.  See,  also,  opinion  of  court 
in  Shaver  v.  AVhite  &  Dougherty  Co.,  0  :\Iunf.  113 ;  and  in  0,3 
Va.,  470,  it  is  held  that  partners  are  joint  tenants  of  the  part- 
nership assets. 

Executors  and  Administrators. 
The  general  rule  for  the  guidance  of  executors  in  the  ad- 
ministration of  their  trusts  is  thus  clearly  and  succiently 
stated  by  Judge  Stanard,  in  delivering  the  opinion  of  this 
court  in  the  case  of  Kee's  Ex'r  v.  Kee's  Creditors,  2  Gratt. 
116,  128 :  "The  duties  of  the  executor  (he  says)  are  to  be  per- 
formed under  the  obligations  of  sound  judgment,  acting  on 
those  considerations  of  worldly  prudence  which  affect  the 
safety  of  the  pecuniary  interests  confided  to  his  care.  When 
such  judgment  so  governed,  is  fairly  exercised  (and  tested 
by  the  facts  existing  and  known  at  the  time  it  is  exercised), 
is  such  as  would  probably  be  formed  by  a  judicious  man  man- 
aaino-  his  affairs  with  reference  to  considerations  of  mere 
worldly  prudence,  the  executor  is  justified  in  acting  on  such 
judgment ;  and  so  acting,  is  not  responsible  for  alleged  losses 
resulting  from  his  conduct."   14  Gratt.  281. 

"Co-executors,  even  though  numerous,  are  regarded  in  law 
as  but  one  person.  The  acts  of  one,  within  the  scoix'  of  his 
authoritv,  in  the  administration  of  the  estate,  are  the  acts  of 
all.  with  this  qualification,  that  at  C(mnn(»n  law  each  was  re- 
sponsible only  for  <n<'li  assets  as  came  to  his  own  hands. 


*   * 


102  Legal    Aphorisms. 

But  even  according  to  the  common  law,  whenever  any  part 
of  the  estate,  by  any  act  or  agreement  of  one  executor,  passes, 
or  is  entrusted  to  the  custody  of  a  co-executor,  they  are  there- 
by rendered  jointly  responsible.     106  Mass.  IS. 

"Was  it  competent  for  the  administrator,  against  the  will 
of  the  third,  to  execute  a  valid  release  ? 

''The  law  as  to  the  power  of  executors,  seems  never  to  have 
been  questioned.  ''If  a  man  appoints  several  executors,  they 
are  esteemed  in  law  but  as  one  person  representing  the  testa- 
tor, and  therefore  the  acts  done  by  any  one  of  them,  which 
relate  either  to  the  delivery,  gift,  sale,  pajanent,  possession  or 
release  of  the  testator's  goods,  are  deemed  the  acts  of  all ;  for 
they  have  a  joint  and  entire  authority.  (3  Bacon's  Abr.  Ex'rs 
&  Adm'rs.  D.)  The  reason  given  for  this  rule  by  Lord  Hard- 
wicke  is,  that  each  executor  is  considered  as  entirely  repre- 
senting the  testator.  (Hudson  v.  Hudson,  1  Atk.  460.)  Lord 
Hardwicke,  however,  considered  that  administrators  have  no 
such  power ;  and  the  principle  reason  assigned  for  the  differ- 
ence is,  that  the  executor  receives  his  power  from  the  testator, 
and  may  perform  many  acts  before  probate  of  the  will ;  but 
the  administrator  receives  all  his  authority  from  the  ordi- 
nary. Lord  Hardwicke  cites  no  authority  but  the  opinion  of 
Lord  Bacon.    (4  Elements  of  the  Law,  p.  83v) 

"A  similar  dictum  is  found  in  11  Viner,  73,  citing  Tot  hill, 
264-5.  The  same  point  is  laid  down  by  Blackstone  (2  Com. 
510),  and  ho  relies  on  the  case  of  Hudson  v.  Hudson.  In 
that  case,  this  point  was  not  necessary  to  be  adjudicated,  as 
the  cause  was  decided  upon  another  point.  The  opinions  of 
Lord  Bacon  and  Lord  Hardwicke  are  entitled  to  great  re- 
spect ;    and  in  the  English  courts  they  have  been  so  treated. 


Legal    Aphorisms.  103 

The  ease  of  Hudson  v.  Hudson  was  decided  in  1737.     In 
1751,  in  Jaeomb  v.  Harwood  (2  Ves.  267),  the  same  ques- 
tion was  discussed  by  Sir  John  Strange,  master  of  the  rolls, 
when  the  case  of  Hudson  v.  Hudson  was  considered.    Speak- 
ing of  that  case,  he  says,  it  was  said  in  that  ease,  the  Lord 
Chancellor  had  been  of  opinion  that  one  administrator  could 
not  release,  so  as  to  bind  the  other;    yet  when  that  case  was 
more  narrowly  looked  into,  it  appeared  clearly  that  was  ap- 
plicable to  the  particular  circumstances  of  the  case.     He  then 
cites  the  case  of  Willard  v.  Fenn,  in  which  there  had  been 
three  arguments  in  the  King's  bench,  and  thereupon  decided 
that  one  administrator  stood  on  the  same  ground  and  founda- 
tion as  one  executor ;  and  such  was  the  decision  of  the  master 
of  the  rolls.     The  case  of  Jaeomb  v.  Harwood  has  never  been 
overruled  in  England,  but  has  been  acquiesced  in,  and  con- 
sidered as  settling  the  point.     Toller's  Exr.  407-8.    And  the 
same  has  been  the  understanding  of  the  courts  in  this  State 
(11  Johns.  R.  22).     The  difference  heretofore  supposed  to 
exist  between  the  jwwers  of  executors  and  administrators,  in 
this  respect,  was  said  to  be  founded  in  the  different  sources 
from  which  their  powers  were  derived ;    the  one  being  by  ap- 
pointment of  the  testator,  the  other  by  the  appointment  of 
law.     I  apprehend  there  never  was  any  reason  for  the  sup- 
posed distinction.     Their  liabilities  and  responsibilities  were 
ever  the  same,  and  their  powers  should  be  so.     But  if  there 
was  p-round  formerlv  for  it,  there  surclv  is  none  under  our 
statutes,  which  recognize  both  as  possessing  the  same  rights, 
and  interest,  and  authority,  over  the  estate  of  the  deceased. 
Savage,  C.  J.,  in  :\rurray  v.  Blatchfcr.l.  1  Wvml  UUV ;  31  W. 
Va.  90  S.  C. ;  5  S.  E.  326 ;  but  see  9  Gratt.  252. 


104  Legal   Aphorisms. 

Suit  against  for  fraud  of  his  decendent.  1  Mad.  Chy.  205 
and  note. 

A  suit  is  instituted  within  five  or  six  months  after  qualifi- 
cation against  an  administrator  for  distribution,  when  he  had 
received  no  assets  of  the  estate,  in  which,  however,  plaintiff 
obtains  a  decree,  although  the  administrator  was  in  no  de- 
fault, and  costs  were  properly  given  to  the  administrator.  9 
Gratt.  293. 

See  Surcharge  &  Falsify. 

Exhibit. 

Filed  with  and  as  a  part  of  a  declaration  and  sustained. 
9  Gratt.  13. 

Federal  Courts. 

How  far  they  will  follow  State  laws  and  decisions.  11 
Va.  L.  Eeg.  177. 

Foreign  Judgments. 
How  authenticated.   1  Eob.  (old)  Pr.  318. 

Foreign  Laws. 

In  this  case  the  report  of  a  decision  of  the  Supreme  Court 
of  Ohio  was  given  in  evidence  on  the  trial  to  show  that  in 
that  State  an  assignment  of  a  particular  kind  was  void.  13 
Gratt.  441. 

In  the  case  of  Vathir  v.  Zane,  6  Gratt.  252,  it  was  agreed 
that  any  book  purporting  to  be  the  statute  law  or  decisions  of 
either  the  State  of  Pennsylvania  or  Ohio  should  be  received 
(in  evidence)  without  further  authentication. 


Legal   Aphorisms.  105 

Former  Recovery. 

Pleading  and  defence  of  where  plaintiff  has  failed  to  offer 
proof  of  one  of  his  demands  in  the  former  action.  2  Johns  R. 
227 ;  0  T.  Rep.  275 ;  20  Gratt.  344. 

Forms. 

Forms  do  not  make  the  law,  yet  they  are  pursiiasive  evi- 
dence of  what  the  law  is.  9  Gratt.  625.  The  forms  and  sub- 
stances of  pleadings  are  the  most  reliable  evidences  of  the 
law.  2  Gratt.  65.  The  forms  of  writs  and  pleadings  have 
always  been  considered  as  evidence  of  what  the  law  is.  3 
Rand.  452.  Pleadings  are  always  evidence  of  the  law.  Buller, 
J.,  in  Read  v.  Brookman,  3  T.  R.  161,  and  books  of  entries 
are  the  best  aiithorties  in  the  absence  of  decided  cases.  Ash- 
hurst,  J.,  in  Boothman  v.  Surry,  2  T.  R.  10 ;  82  Mass.  238. 

Forthcoming  Bond. 

Form  of  judgment  thereon.  31  Gratt.  267.  Form  of  pro- 
ceedings and  entries  where  first  judgment  was  erroneously 
entered  and  second  judgment  awarded.    18  Gratt.  238. 

Form  of  judgment  by  default  on.     21  Gratt.  107. 

The  court  on  its  chancery  side  may  give  judgment  on.  31 
Gratt.  265. 

Best  to  give  notice  of  the  defence  of  recoupment  or  set-off. 
7  Hill  56. 

The  failure  of  a  leasor  to  perform  certain  covenants  in 
the  lease,  which,  if  performed,  would  render  the  demised 
premises  more  valuable,  is  no  bar  to  the  lessor's  claim  for 
ri'ut ;  the  remedy  for  the  lessee  is,  by  action  to  recover  dam- 
ages for  the  breach  of  the  covenants.     22  Gratt.  129. 


106  Legal   Aphokisms. 

Fraud. — See  Executors  and  Administrators. 

"Fraud  may  appear  from  the  provisions  of  the  instrument 
itself,  or  be  proved  by  evidence  aliunde.  Whenever  it  is  appa- 
rent on  the  face  of  the  instrument,  it  is  called  constructive 
or  legal  fraud;  and  in  such  case,  the  fraud  is  adjudged  by 
the  law  to  be  conclusively  established  by  the  provisions  of  the 
conveyance  itself,  and  cannot  be  disproved  by  other  evidence. 
(Authorities  cited.)  But  mere  badges  of  fraud,  whether  they 
appear  on  the  face  of  the  instrument  or  from  evidence 
aliunde,  may  always  be  repelled  by  other  evidence.  (Authori- 
ties cited)  ;  and  see  18  Gratt.  395. 

"While  an  instrument  which  is  fraudulent  on  its  face  is 
conclusive  of  the  question  of  fraud,  and  the  contrary  cannot 
be  shown  by  extrinsic  evidence,  no  appearance  of  fairness  on 
the  face  of  a  conveyance,  if  executed  with  a  fraudulent  in- 
tent, will  exclude  evidence  of  the  fraud  (authorities  cited), 
or  give  validity  to  the  conveyance,  if  it  be  proved  to  be  fraud- 
ulent."   93  Va.  535. 

Fraudulent  disposition  by  pawning  goods  committed  to 
one  to  be  sold  to  a  particular  person.  49  N.  W.  840 ;  1  I^.  Y. 
Supp.  875. 

Purchase  of  goods  by  insolvent  buyer.  8  Va.  L.  R.  429. 
Some  of  the  facts  that  may  be  shown  in  evidence  to  prove 
that  purchase  of  chattels  was  fraudulent:  Other  purchases 
made  of  other  parties  about  the  same  time  may  be  competent, 
if  they  are  so  connected  as  to  show  a  general  purpose  in  their 
transactions,  or  that  they  were  conducting  business  in  some 
unusual  manner,  indicating  an  expectation  of  failure;  the 
state  of  their  bank  account,  and  their  mode  of  overdrawing 
for  a  week  or  more  before  the  purchase ;  the  amount  of  their 


Legal    Ai'iiouisms,  107 

liabilities  at  the  time  of  their  failure  and,  in  connection  with 
other  evidence,  the  amount  realized  from  the  assets  of  the 
iirm.  115  .Mass.  53S.  Insclveney,  100  Va.  5G7.  Knowl- 
edge on  the  part  of  purchaser  of  facts  and  circumstances 
which  would  have  excited  the  suspicion  of  a  man  of  ordinary 
care  and  prudence  and  put  him  upon  inquiry  as  to  the  bona 
fides  of  the  transaction,  which  inquiry  would  necessarily  have 
led  to  a  discovery  of  the  fraud  of  the  seller.  97  Va.  182.  In- 
adequacy of  price  as  a  badge  of  the  fraud.    19  Gratt.  107. 

"A  trustee  is  under  a  disability  to  become  a  purchaser  of 
any  part  of  the  trust  estate.    Smith  v.  Miller,  98  Va.  535  ; 
Harrison  v.  Manson,  95  Va.  593,  and  others  of  a  like  char- 
acter.    The  cases  cited  are  those  of  trustees  whose  duty  it  was 
to  sell  the  trust  property,  and  who  at  the  sale  became  the 
purchaser  of  the  trust  subject,  but  the  rule  is  "of  universal 
ai)plication  to  all  persons  coming  within  its  principle :  which 
is,  that  no  party  can  be  permitted  to  purchase    an    interest 
when  he  has  a  duty  to  perform  which  is  inconsistent  with  the 
character  of  a  purchaser."    2  Eob.  Pr.  317.     As  was  said  by 
Lord  Eldon  in  ex  parte  James,  8  Ves.  345 :  ''This  doctrine  as 
to  purchases  by  trustees,  assignees,  and  persons  having  a  con- 
fidential character,  rests  much  more  upon  general  principal 
than  upon  the  circumstances  of  any  particular  case.     It  rests 
upon  this,  that  the  purchase  is  not  permitted  in  any  case, 
however  honest  the  circumstances;  the  general  interests  of 
justice  requiring  it  to  be  destroyed  in  every  instance,  as  no 
court  is  equal  to  the  examination  and  ascertainment  of  the 
truth  in  much  the  greater  number  of  cases." 

"It  has  been  established  and  classified  as  a  '"third  species 
of  fraud,  which  may  l)e  presunuxl  from  the  circumstances  and 


108  Legal   Aphorisms. 

conditions  of  the  jDarties  contracting;  and  this  goes  further 
than  the  rule  of  law,  which  is  that  fraud  must  be  proved,  not 
presumed."  Chesterfield  v.  -Janssen,  2  Ves.  S.  C.  155 ;  99 
Va.  339.  It  seems  that  the  transaction  is  voidable  only  at  the 
election  of  the  cestui  que  trust."   99  Va.  339. 

Fraudulent  Conveyances. 

The  statutes  of  13th  and  27th  of  Elizabeth,  are  the  foun- 
dation of  our  doctrine  of  fraudulent  conveyances.  And 
whether  they  are  in  affirmance  of  the  ancient  common  law  or 
not,  their  principles  have  long  been  adopted  here,  and  have, 
both  in  England  and  America,  been  a  text  upon  this  subject 
prolific  of  commentary.  They  expressly  declare  fraudulent 
sales  and  conveyances  to  be  ''utterly  void,  frustrate  and  of 
none  effect,"  "only  as  against  creditors" ;  plainly  implying 
that  between  the  parties  they  are  valid  and  operative  (author- 
ities cited).    39  Mass.  258. 

Are  void  against  a  contingent  liability.  18'  Wend.  375. 
And  a  claim  for  damages  for  a  tort.    76  Va.  587. 

Geass. 

Grass  not  severed  is  a  part  of  the  realty,  7  Cush.  188; 
and  growing  on  a  highway  is  the  property  of  the  owner  of  the 
fee.     5  Denio.  264. 

Garnishment. 

Garnishment  is  purely  a  statutory  proceeding,  and  cannot 
be  enforced  beyond  the  statutory  authority  under  which  it  is 
resorted  to.  And,  it  can  have  no  aid  from  the  volunteered 
acts  of  the  garnishee.  Such  acts  will  be  regarded  as  void,  so 
far  as  they  interfere  with  the  rights  of  third  parties.  A  gar- 
nishee, in  the  eyes  of  the  law,  is  a  mere  stake  holder,  a  cus- 


Legal    Apiiokisms.  109 

todian  of  the  effects  in  his  hands.  The  garnishment  is  an 
attachment  of  such  effects,  differing  in  no  essential  particular 
from  attachment  by  levy,  except  as  is  said  the  plaintiff  does 
not  acquire  a  clear  and  full  lien  upon  the  specific  property  in 
the  garnishee's  possession,  but  only  such  a  lien  as  gives  him 
the  right  to  hold  the  garnishee  personally  liable  for  it  or  its 
value.   See  Drake  on  Attachment,  sees.  450,  45C ;  76  Va.  GOl. 

When  a  partnership  firm  is  garnisheed,  each  member  of 
the  firm  should  be  summoned  and  served  with  the  process.  15 
Gratt.  61. 

After  action  commenced  in  one  court,  no  garnishment  pro- 
ceedings can  be  had  in  another  court.  13  Pet.  151 ;  2  Mass. 
32. 

Eight  of  a  party  to  garnishee  himself.    55  L.  R.  A.  53. 

Garnishment  of  non-resident — notice  by  publication. 
King  V.  Cross,  175  U.  S.  396;  6  Va.  L.  Reg.  712,  212. 

Gifts. 

Of  personalty.     1  Va.  L.  Reg.  871,  894. 

Causa  mortis.    1  Va.  L.  Reg.  871,  894;  101  Va.  416. 

Presumption  i liter  vivos  of  undue  influence  where  confi- 
dential relation  exists.  8  Va.  L.  Reg.  215 ;  97  Va.  146. 

A  gift  made  perfect  by  delivery  is  an  executed  contract, 
being  founded  on  the  mutual  assent  of  the  parties  in  reference 
to  a  right  or  interest  passing  between  them  (authorities 
cited).  33  Gratt.  742;  CJioses  in  action  not  negotiable  and 
negotiable  paper  not  endorsed,  may  be  the  subject  of  a  gift, 
and  that  a  delivery,  which  vests  in  the  donee  the  equitable 
title  is  suflicient  without  a  complete  transfer  of  the  legal  title. 
99  Va.  501-2 ;  but  it  would  seem  that  such  transfer,  if  made 
by  a  separate  paper,  must  be  accompanied  by  delivery  or  en- 


110  Legal    Aphoeisms. 

dorsement.    Badgley  v.  Vottrain.     68  111.  25 ;  Merwin  E.  & 
E.  PL  106. 

GUAEANTY. 

Liability  of  guarantor  and  how  enforced.  2  Va.  L.  Reg. 
78. 

The  following  are  some  of  the  contracts  held  to  be  con- 
tinning  guaranties :  "I  guaranty  the  payment  of  bills  of  mer- 
chandise that  Mrs.  P.  has  purchased,  or  may  purchase  of  B. 
&  Co. — Mrs.  P.  having  90  days'  credit  on  the  purchases,  the 
amount  of  this  guaranty  not  exceeding  $200,  and  to  expire  in 
one  year  from  date."  (Clark  v.  Burdett,  2  Hall  197)  ;  ''I  will 
guarantee  their  engagements,  should  you  think  it  necessary, 
for  any  transactions  they  may  have  in  your  house."  (Grant  v. 
Bidsdale,  2  Har.  &  J.  186)  ;  "I  hereby  undertake  and  engage 
to  be  answerable  to  the  extent  of  £300  for  any  tallow  or  soap 
supplied  by  Mr.  Baston  to  France  &  Bennett"  (Baston  v. 
Bennett,  3  Camp.  220)  ;  "Goods  delivered  in  umbrellas," 
&c.  "to  A.,  according  to  the  custom  of  his  trading  with  you  in 
the  sum  of  £200."  Hargrave  v.  Smee,  6  Bing.  241 ;  O.  C.  3 
M.  &  P.  573.  See,  also,  Douglas  v.  Eeynolds,  7  Pet.  113; 
and  Laurence  v.  McCalmont,  2  How.  (U.  S.)  126;  3  Denio. 
519. 

On  the  other  hand,  the  following  have  been  held  not  to  be 
continuing  guaranties:  ''If  D.  wishes  to  take  goods  of  you  on 
credit,  we  are  willing  to  lend  our  names  as  security  for  any 
amount  he  may  wish."  (Rogers  v.  Warner,  8  John.  119)  ; 
•^The  object  of  the  present  letter  is  to  request  you,  if  con- 
venient to  furnish  Messrs.  H.  with  any  sum  they  may  want, 
as  far  as  $50,000.  We  shall  hold  ourselves  answerable  to  you 
for    the    amount."    (Cremer  v.  lligginson,  1    Mason    323)  ; 


Legal   Athokisms.  Ill 

''Should  3^011  be  disposed  to  furnish  ('.  with  such  goods  as  he 
may  call  for,  from  $300  to  $500  worth,  I  will  hold  myself 
accountable  for  the  payment,  should  he  not  pay  as  you  and  he 
shall  agree."  ( Rapelze  v.  Bailey,  3  Conn.  438)  ;  3  Denio.  520. 

GUAKDIAN  AD  LiTEM. 

Powers  of  guardian  ad  litem.  8  Va.  L.  Reg.  685;  83  Va. 
91 ;  79  Am.  Dec.  212. 

Order  appointing  guardian  ad  litem  set  aside,  another 
appointed,  and  upon  his  motion,  by  counsel,  leave  was 
o-ranted  him  to  answer  de  novo  for  self  and  infant.  1  Rob.  R. 
509. 

Infant  may,  by  his  next  friend,  file  petition  and  have 
guardian  ad  litem  appointed.  16  B.  Monroe,  63,  S.  C. ;  63 
Am.  Dec.  553. 

Guardian  and  Waed. 

The  liability  of  the  ward's  estate,  if  it  exist  at  all,  can 
only  be  asserted  in  a  court  of  chancery.  This  court  has,  for  a 
long  course  of  years,  reckoned  among  the  subjects  of  its  origi- 
nal jurisdiction,  the  care  of  infants  and  the  protection  of 
their  rights  and  estates.  Guardians  are  but  the  ministers  and 
agents  of  these  courts  in  the  administration  of  these  func- 
tions ;  and  are  subject  to  their  instructions,  in  the  use  of  the 
profits  or  capital  of  the  estate  of  their  wards.  While  the  com- 
mon law  admits  of  a  suit  against  an  infant  for  necessaries,  it 
is  the  peculiar  province  of  a  court  of  equity  to  give  relief  to  a 
creditor  as  against  the  estate  of  such  infant.     17  Gratt.  404. 


*&*• 


Husband  and  Wife. 
Communications    between    husband  and  wife  inherently 
incompetent  as  evidence.    4  Va.  L.  Reg.  621. 


112  Legal    Aphoeisms. 

Judgment  against  wife,  collateral  attack.  5  Va.  L.  Reg. 
485. 

Liability  of  husband  for  necessaries  furnished  to  wife. 
Wanamaker  v.  Weaver  (K".  Y.  Ct.  of  Appeals),  Oct.  6,  1893; 
GS  K  E.  Eep.  135. 

Infants. 
They  were  all  under  age ;  and  it  can  hardly  be  supposed  the 
Legislature  intended  that  process  should  be  served  upon  in- 
fants. There  can  be  no  discrimination  between  minors  of 
different  ages,  and  none  is  made  by  the  act ;  and  if  it  be 
necessary  to  serve  a  process  upon  any,  it  must  be  equally  so 
to  serve  it  upon  those  of  the  most  tender  years,  and  who 
would,  of  course,  be  utterly  unable  to  comprehend  what  was 
intended,  or  to  make  any  response  after  they  were  so  sum- 
moned. So  idle  a  form  it  cannot  be  supposed  was  intended  to 
be  observed.  *  *  See,  also,  102  Va.  330. 

Next  Friend  for  Infant — A  formal  order  assigning  a  next 
friend  to  prosecute  a  suit  for  an  infant  is  very  unusual  in  our 
practice.  Any  person  may  bring  a  suit  in  the  name  of  an 
infant,  as  its  next  friend,  and  ordinarily  the  court  will  recog- 
nize him  as  such  next  friend,  and  take  cognizance  of  the  case 
as  properly  brought  and  prosecuted.  If  it  appear  to  the  court 
that  the  suit  is  not  for  the  benefit  of  the  infant,  or  that  the 
person  named  is  not  a  suitable  person  for  the  purpose,  the 
court  may  dismiss  the  suit  without  prejudice,  or  assign  an- 
other person  to  prosecute  it  as  next  friend  to  the  infant.  And 
the  court  may,  if  it  think  fit,  direct  an  inquiry  by  a  commis- 
sioner to  ascertain  whether  the  suit  be  for  the  benefit  of  the 
infant,  or  whether  the  person  prosecuting  it  as  next  friend  be 
a  fit  person  for  that  purpose.     22  Gratt.  504. 


Legal   Aphorisms.  113 

Mortgage  by  infant — disaffirmance — return  of  consider- 
ation.    3  ^'a.  L.  Eeg.  313. 

May  be  liable  for  a  frand  or  a  tort.   79  Va.  510 ;  G  Va.  L. 

Keg.  59. 

Fraudulent  representation  as  to  age.    2  Va.  L.  Reg.  466; 

6  Id.  60. 

Liable  in  tort  for  obtaining  goods  fraudulently.    6  Va.  L. 

Rcff.  59. 

Repudiation  of  contracts.    6  Va.  L.  Reg.  113  and  note. 

Liability  on  contracts  other  than  for  reasonable  value  of 
necessaries  and  on  contracts  made  in  pursuance  of  statutory 
authority.   3  Va.  L.  Reg.  611 ;  Id.  612 ;  15  Wend.  64. 

Form  of  Plea  of  Infancy  of  Plaintiff. — The  plea  of  A.  B., 
a  defendant  to  the  bill  of  complaint  exhibited  against  him  by 
X.  Y.  in  the court  of . 

This  defendant,  by  protestation,  not  confessing  or 
acknowledging  all  or  any  part  of  the  matters  in  said  bill  of 
complaint  contained,  to  be  true  in  manner  and  form  as  the 
same  are  therein  set  forth,  for  plea,  nevertheless,  to  the  said 
bill,  doth  ])\v'm\  and  aver  that  the  said  complainant  at  the 
time  of  filing  his  said  bill  was,  and  now  is,  an  infant  under 

the  age  of  twenty-one  years ;  that  is  to  say,  of  the  age  of 

years,  or  thereabout.  Wherefore  the  defendant  prays  judg- 
ment of  this  honarable  court  whether  he  shall  be  compelled 
to  make  any  further  or  other  answer  to  the  said  bill,  and 
prays  hence  to  be  dismissed  with  his  reasonable  costs  and 
charges  in  this  behalf  most  wrongfully  sustained. 

Sand's  Suit,  280.  3L  P.,  pd. 

Idem  Soxans. 
Idon  Sonan.s  is  a  question  for  the  jury.    11  Gray  323;  2 
Den.  Cr.  Cases  231. 


114  Legal    x\phokisms. 

Incumbrance. 

Every  right  to,  or  interest  in  the  land  granted,  to  the 
diminution  of  the  land,  but  consistent  with  the  passing  of 
the  fee  of  it  bv  the  conveyance,  must  be  deemed  in  law  an  in- 
cunibrance.  We  saj  consistent  with  the  passing  of  the  fee  of 
the  land  by  the  conveyance,  because,  if  nothing  passed  by  the 
deed,  the  grantee  cannot  hold  the  estate  under  the  grantor. 
Thus  an  easement  of  any  kind  in  the  land  is  an  incumbrance. 
So  is  a  mortgage.  So,  also,  is  a  claim  of  dower  (an  inchoate 
right  of  dower  is  an  existing  incumbrance  on  land,  within 
the  meaning  of  the  covenant  against  incumbrances.  39  Mass, 
447).  (During  the  life  of  the  husband  the  wife  has  a  mere 
contingent  right  of  dower,  which  is  in  the  nature  of  a  contin- 
gent lien  or  incumbrance  upon  the  realty.  33  Gratt.  285), 
which  may  partially  defeat  the  plaintiff's  title,  by  taking  a 
freehold  in  one-third  of  it.  And  for  the  same  reason,  a  para- 
mount right  which  may  wholly  defeat  the  plaintiff's  title,  is 
an  incumbrance.  It  is  a  weio'ht  on  his  land,  which  must  les- 
sen  the  value  of  it.    4  Mass.  629. 

Indemnifying  Bonds. 
Porm  of  declaration  in  action  on.    5  Munf.  32.    This  de- 
claration was  sustained  on  demurrer  in  Kevan  v.  Branch.    1 
Gratt.  274.     The    plea  to  this    declaration  is  condition  per- 
formed.    1  Gratt.  274. 

Independent  Contracts.    2  Va.  L.  Reg.  804. 

Infant. — See  Husband  and  Wife. 
When  a  guardian  appears  for  the  infant,  it  must  always 
be  entered  on  the  record  that  the  infant  came  by  his  guardian, 
and  never  that  he  appeared  by  attorney.    An  infant  can  never 


Legal    Aphorisms.  115 

make  an  attorney  or  appear  by  one.  And  this  rule  holds, 
though  the  infant  be  sued  jointly  with  an  adult  defendant. 
The  adult  defendant  may  make  and  appear  by  an  attorney, 
but  the  infant  cannot.  2  Str.  783 ;  2  Call.  1.  If  an  infant 
defendant  attain  his  full  age  l)efore  the  suit  is  determined, 
the  power  of  the  guardian  ad  litem  will  then  cease.  And  the 
projx^r  course  will  be,  to  enter  upon  the  record  the  fact  that 
the  infant  defendant  has  attained  his  full  as-e,  and  then  to 
state  his  appearance  either  in  person  or  by  attorney,  as  the 
case  may  be.    1  Rob.  (old)  Pr.  173. 

Avoiding  his  contracts.   6  Va.  L.  Reg.  113;  3  Id.  313. 

In  an  action  ao-ainst  a  defendant  who  is  an  infant,  the 
plaintiff  may  declare  as  against  another  person,  and  it  is  not 
necessary  to  declare  against  him  as  an  infant  and  charge  that 
the  goods  were  necessaries.    2  Rand.  181, 

An  action  against  an  infant  on  a  contract — viz. :  Where 
horse  was  hired  to  be  ridden  moderatelv,  cannot  be  converted 
into  a  tort.   7  T.  R.  194;  1  Chitty  PI.  87. 

Infancy  may  be  proved  under  the  general  issue,  but  it  is 
better  to  plead  it  specially.     1  Chitty  PI.  516,  5. 

Infancy  is  admitted  by  a  replication  of  a  new  promise.  3 
Wend.  479. 

In  a  plea  to  the  jurisdiction,  the  appearance  of  the  infant 
must  purport  to  be  in  person.     4  Minor  7G4. 

To  a  plea  of  infancy  to  which  the  plaintiff  has  replied  sev- 
eral matters,  as,  for  instance,  that  a  part  of  the  goods  was 
necessary  clothinc-  and  the  residue  necessary  food,  a  e-eneral 
denial  in  the  rejoinder  concluding  to  the  country  will  sutKce, 


lie  Legal    Aphorisms. 

without  putting  the  matters  in  issue  severally  and  distinctly. 

1  Chitty  PI.  690. 

Action  of  deceit  for  fraudulent  representations  as  to  age. 

2  Va.  L.  Reg.  467. 

It  would  seem  that  except  where  by  statute  infants  are 
required  to  answer  in  person  and  in  all  other  cases  they  an- 
swer by  guardian  ad  litem  (31  Gratt.  501;  26  Gratt.  520), 
there  is  no  necessity  for  a  summons  to  be  served  upon  them  to 
appear.  1  Va.  L.  Reg.  153.  In  the  case  of  Parker  v.  McCoy, 
10  Gratt.  594,  on  page  606,  Lee,  J.,  delivering  the  opinion  of 
the  court  (Moncure,  J.,  and  Samuels,  J.,  concurring),  I  think 
there  is  nothing  in  the  objection  that  a  summons  had  not  been 
served  upon  the  heirs  before    the    order  of    sale  was    made. 

IlSrjUNCTION. 

Irreparable  damages  when  no  pecuniary  standard  exists 
for  the  measurement  of  them.   S  Va.  L.  Reg.  140. 

Dismissed  upon  condition  that  the  defendant  execute  a 
conveyance.    4  Rand.  481. 

Insanity. 

Limitations  against  one  restored  to  sanity,  who  subse- 
quently becomes  insane  again,  begins  to  run  from  time  of  res- 
toration to  sanity  in  the  first  instance.    1  Mete.  (Kty.)  35. 

Insurance. 
Description  in  declaration  of  goods  destroyed  by  fire. 
When  a  person's  house  is  burnt,  general  words  are  sufficient 
in  the  description  of  the  goods  thereby  destroyed,  because  he 
is  not  presumed  to  be  able  to  see  forthwith  with  certainty  the 
goods  destroyed.    1  Chitty's  PI.  (7  Am.  Ed.)  270. 


Legal    Aphorisms.  117 

Upon  a  declaration  on  a  policy  of  insurance  stating  a 
total  loss  a  partial  loss  may  be  recovered.  1  Chitty  PI.  (7 
Am.  Ed.)  372. 

IXSTRUCTIOX. 

If  the  jury  shall  believe  that  the  ease  as  proved  is  differ- 
ent from  that  stated  in  the  instruction,  the  opinion  of  the 
court  having  no  application  to  the  case  as  iiroved,  can  have 
no  influence  on  the  verdict,   5  Rand.  194. 

Interest. 

Where  there  has  been  no  payment,  demand  or  adjustment, 
it  has  been  repeatedly  settled,  that  in  ascertaining  the  amount 
due  on  a  note,  made  payable  with  interest  annually,  simple 
interest  only  is  to  be  computed.  56  Mass.  98.  The  appellant 
might  have  collected  his  interest  at  the  expiration  of  any  six 
months  according  to  his  contract ;  but  having  failed  to  do  so, 
he  cannot  now  convert  that  interest  into  principal  so  as  to 
make  it  an  interest-bearing  fund.  Even  though  the  appellee 
had  expressly  agTeed  to  pay  such  interest  it  would  have  been 
invalid  as  hard  and  oppressive  and  tending  to  usury.  4  Rand. 
408;  26  Gratt.  911. 

Contract  in  one  State,  performance  in  another,  what  law 
governs.    7  Va.  L.  Reg.  515 ;  91  Va.  706 ;  29  Gratt.  581. 

JOIXT,  AXD  JOTXT  AXD  SeVERAT.  CoXTRACTS. 

In  actions  by  and  against  several  persons,  whether  ex  con- 
tractu or  ex  delicto,  all  the  causes  of  action  must  be  stated  to 
be  joint.  Thus  a  plaintiff  cannot,  in  a  declaration  against 
two  defendants,  state  that  one  of  them  assaulted  him,  and  in 
another  part  that  the  other  assaulted  him,  or  t(Xtk  his  goods, 
for  the  trespasses  are  of  several  natures,  and  against  several 


118  Legal   Aphoeisms. 

persons,  and  they  cannot  plead  to  this  declaration.  1  Chitty 
PI.  (7  Am.  Ed.)  231;  82  Va.  501-505. 

In  an  action  against  several  defendants  on  a  joint  con- 
tract, plaintiff  cannot  recover  judgment  against  part  of  them ; 
he  must  have  a  joint  judgment  against  all,  or  he  cannot  have 
it  against  any.  If  the  contract  be  several,  as  well  as  joint,  the 
action  must  be  against  all  the  obligees  jointly  or  against  one 
of  them  singly,  and  not  against  any  intermediate  member. 
If  the  plaintiff  elects  to  proceed  against  all,  the  same  conse- 
quences ensue  as  in  an  action  on  a  joint  contract ;  he  must 
have  judgment  against  all  or  none.  Except  that,  by  virtue  of 
section  3395  of  the  code  of  Virginia,  in  those  cases  in  which 
the  contract  is  proved  as  laid,  but  by  reason  of  some  personal 
disability,  such  as  infancy,  or  some  subsequent  discharge, 
such  as  bankruptcy,  personal  to  him  who  pleads  it,  the  plain- 
tiff's action  is  barred  as  to  part  of  the  defendants.  26  Gratt. 
425;  19  Gratt.  1. 

When  parol  evidence  is  admissible,  the  confessions  of  one 
of  several  persons  jointly  bound,  are  competent  and  prima 
facie  evidence  against  the  others,     l  Rand.  324. 

Whenever  two  or  more  persons  having  a  community  of 
interest  hold  an  imperfect  title  and  one  of  them  buys  in  an 
outstanding  title,  such  purchase  will  enure  to  the  common 
benefit  upon  contribution  made  to  repay  the  purchase  money. 
This  rule  is  based  upon  the  community  of  interest  in  a  com- 
mon title,  creating  such  a  relation  of  trust  and  confidence  be- 
tween the  parties  that  it  would  be  inequitable  to  permit  one 
of  them  to  do  anything  to  the  prejudice  of  the  other  in  refer- 
ence to  the  common  property.  Bothwell  v.  Dewees,  2  Black, 
U.  S.  R.  G13;    Buchanan  v.  King's    Heirs,  22  Gratt.  414. 


Legal   Aphorisms.  119 

Thits  principle  c<inally  npplics  to  joint  tenants,  tenants  in 
common,  co-partners  and  all  others  having  a  common  title 
and  interest.     29  Gratt.  144. 

One  of  two  sureties  of  an  insolvent  administrator  pur- 
chases up  legacies  for  which  the  sureties  are  bound,  at  a  dis- 
count. He  shall  only  charge  his  co-surety  for  his  proportion 
of  what  he  has  paid  for  the  legacies  and  of  the  expenses  of 
purchasing  them.  12  Gratt.  G42.  A  surety  has  no  equity  to 
be  subrogated  to  the  rights  and  securities  of  the  creditor 
against  the  debtor  for  what  he  has  not  paid  for  him ;  but  only 
for  what  he  has  paid  for  him.  So  that  upon  the  principle  of 
subrogation,  as  upon  the  implied  contract  of  indemnity,  the 
surety  is  not  entitled  to  recover  from  the  principal  a  greater 
amount  than  he  has  paid  for  him.  22  Gratt.  752.  And  where 
a  co-surety  bought  the  property  of  the  principal  at  less  than 
its  value,  the  co-surety  w^as  entitled  to  be  credited  with  half 
of  its  real  value.    7  X.  E.  R.  578. 

Judgment. 

Judgment  in  an  action  at  laAV,  other  than  upon  trial  u^wn 
issue  joined,  is,  first,  either  by  default  for  want  of  plea  after 
appearance;  or,  second,  by  nil  (licit,  as  it  is  termed;  or  under 
our  statute,  by  default  for  failure  to  appear  after  having  been 
duly  summoned  ;  or,  fourth,  by  non  sum  informaius  where  the 
defendant's  attorne}^,  having  appeared,  says  he  is  not  in- 
formed of  any  answer  to  be  given  to  the  action ;  or,  fourth,  by 
confession,  or  cognorit  actionem.    12  Gratt.  57. 

By  publication  against  citizen  of  Virginia,  when  more 
than  thirty  defendants.    5  Va.  L.  Reg.  182. 

By  constructive  service  of  iir(icess.  5  Vn.  L.  Tfeg.  180;  92 
Va.  201 ;  2  Va.  L.  Beo-.  48. 


120  Legal    Aphorisms. 

When  process  is  sued  out  against  wrong-  person.  5  Va.  L. 
Reg.  570 ;  7  Ya.  L.  Eeg.  648. 

On  a  cause  of  action  not  arising  out  of  contract  is  not  a 
contract.  5  Va.  L.  Eeg.  187;  21  Wall  196;  131  U.  S.  405; 
47  Am.  R.  64. 

Setting  off  one  judgment  against  another.  6  Va.  L.  Reg. 
122. 

When  a  Judgment  is  a  Bar  to  Another  Action. — It  is  a 
general  rule  that  a  judgment  in  an  action  for  any  part  of  an 
entire  cause  of  action,  is  a  bar  to  another  cause  of  action 
founded  on  any  other  part  of  the  same  entire  cause  of  action. 
Hite  V.  Long,  6  Rand.  457;  19  Gratt.  71.  There  can,  of 
course,  be  no  doubt  that  a  verdict  in  one  suit  will  be  conclu- 
sive in  every  other  between  the  same  parties,  when  the  cause 
of  action  is  the  same;  upon  the  ground  that  what  has  once 
been  judicially  determined  shall  not  again  be  made  the  sub- 
ject of  controversy.  But  it  has  been  settled  by  numerous 
cases,  that  to  make  such  verdict  available  as  an  estoppel,  or 
conclusive  as  evidence,  it  must  appear  not  only  that  the  same 
matter  was  in  controversy,  but  that  it  was  actually  decided; 
and  that  where  the  verdict  of  the  jury  may  have  been  founded 
upon  one  of  two  points,  it  will  not  operate  as  an  estoppel  as  to 
either.  2  Smith  L.  C.  374.  Although  the  testimony  may  have 
been  sufficient  to  establish  a  particular  fact,  and  that  fact 
may  have  been  involved  in  one  of  the  issues  to  be  tried,  yet  if 
it  be  doubtful  Avhether  the  verdict  was  based  upon  such  fact, 
it  will  not  operate  as  an  cstopel.  20  Gratt.  363.  The  judg- 
ment of  a  court  of  concurrent  jurisdiction  direclhj  upon  the 
point,  is,  as  a  plea,  a  bar,  or  as  evidence,  conclusive  between 
the  parties,  upon  the  same  matter,  directly  in  question  in 


Legal    Aphorisms.  121 

another  court.  The  judgment  in  the  former  suit  must  be 
directly  on  the  point  which  is  in  question  in  the  subsequent 
suit,  to  make  it  a  bar,  Avheii  pleaded,  or  conclusive  when 
relied  on  as  evidence.  A  judgment  concludes  the  parties  only 
as  to  the  grounds  covered  by  it  and  the  facts  necessary  to  up- 
hold it.   25  Gratt.  759. 

In  an  action  on  a  judgment  it  is  always  competent  to  show 
that  such  judgment  has  been  paid  or  discharged ;  or  that,  by 
reason  of  subsequent  acts  the  right  to  a  new  judgment  has 
been  lost,  in  whole  or  in  part ;  or  that  there  hav-^e  arisen  equi- 
ties of  such  a  character  as  may  be  shown  to  affect  the  same. 
7  Grav  214. 

There  are  some  cases  in  which  those  who  are  not  parties 
to  the  suit,  and  do  not  claim  under  either  of  the  parties,  may 
be  bound  by  the  judgment ;  as  in  the  cases  of  contracts  of 
indemnitv,  and  in  the  nature  of  contracts  of  indemnitv,  and 
in  those  cases  in  which  a  person,  although  not  in  form  a  party 
to  the  suit,  is  bound  to  assist  in  the  prosecution  or  defence, 
and  either  does  so  in  fact,  or,  having  notice  of  the  pendency 
of  the  suit,  fails  to  do  so.  Green,  J.,  in  Munford  v.  Overseers 
of  the  Poor,  2  Rand.  318".  See,  also,  Lee  Ex'r  v.  Cooke,  1 
Wash.  80G ;  1  Rob.  (old)  Pr.  311 ;  4  Hill  522. 

When  defendant  dies  after  verdict,  judgment  mnic  pro 
tine  may  be  entered  up  as  of  any  day  priiu-  to  his  death  dur- 
ing the  term.   16  Pick.  174;  3  Peters  (U.  S.)  412. 

Collateral  attack  when  special  powers  are  conferred  by 
statutes  and  court  acts  judicially  and  when  it  acts  minis- 
teriallv.   1  Va.  L.  Reg.  854,  855 ;  28  Gratt.  872 :  7«*.  Va.  ('.20. 

Collateral  attack  bv  wife  of  judgment  aizainst  her  and  her 
husband.    5  Va.  L.  Rcff.  485. 


122  Legal   Aphorisms. 

Exceptions  to  the  rule,  that  a  judgment  cannot  be  collat- 
erally attached.   30  Gratt.  Til. 

A  judgment  was  not  assignable  at  common  law  (3  Leigh 
93),  but  by  virtue  of  the  statute,  V.  C.  2860,  it  is  assignable 
as  a  non-negotiable  chose  in  action.  3  Minor  432 ;  22  Gratt. 
598. 

Form  of  Judgment  on  Penal  Ohligation. — Judgment  was 
rendered  for  the  sum  found  by  the  jury  and  for  costs.  Regu- 
larly, the  judgment  should  have  been  for  the  penalty  to  be 
discharged  by  the  payment  of  the  principal  sum  and  interest 
found  by  the  jury  and  costs.  But  the  error  is  formal  merely. 
The  judgment  might  be  amended,  and  as  amended,  affirmed ; 
but  it  is  substantially  correct  as  it  is,  and  there  is  no  necessity 
of  changing  the  form  of  it.    32  Gratt.  725. 

Origin,  nature  and  extent  of  lien  of  a  judgment.  28  Gratt. 
428. 

Foreigii  judgments  are  authenticated,  by  an  exemplifica- 
tion imder  the  great  seal ;  by  a  copy  proved  to  be  a  true  copy ; 
by  the  certificate  of  an  officer  authorized  by  law,  which  cer- 
tificate must  itself  be  properly  authenticated.  These  are  the 
usual  and  most  proper  modes  of  verifying  foreign  judgments. 
2  Cr.  238 ;  5  Cr.  335.  But  see  3  Call  446 ;  2  Munf.  53.  The 
decision  in  this  last  case  proceeds  upon  the  ground  that  the 
act  of  Congress  of  December  8,  1792,  is  cumulative  and  does 
not  exclude  any  mode  of  proof  which,  anterior  to  that  act, 
would  have  been  sufficient.   1  Rob.  (old)  Pr.  318. 

Judicial  Discretion. 
Discretion,  says  Lord  ]\ransfield,  when  applied  to  a  court 
of  justice,  means  sound  discretion  guided  by  law.     It  must 


Legal   Aphorisms.  123 

be  governed  by  rule:  it  must  not  be  arbitrary,  vague  and  tan- 
ciful,  but  legal  and  regular.  2  liurr  Jl.  39  ;  31  Gratt.  10 ;  and 
in  e(}uity,  the  discretion  to  be  exercised  is  not  an  arbitrary 
and  capricious  one,  depending  upon  the  mere  pleasure  of  the 
court,  but  one  which  is  to  be  exercised  and  controlled  by  the 
established  doctrines  and  settled  principles  of  equity,  gov- 
erned by  the  circumstances  of  each  particular  case.  Willard 
V.  Tayloe,  8  Wall  553 ;   21  Gratt.  30. 

Judicial  Sales.   See  Vendor  and  Vendee. 

To  what  extent  a  purchaser  at  a  judicial  sale  is  put  upon 
inquiry.  3  Leigh  381 ;  21  Gratt.  327 ;  Idem.  G45 ;  29  Gratt. 
351 ;  101  Va.  61. 

Authority  given  in  decree  for  sale  to  receive  private  offers 
and  make  report  to  judge  in  vacation :  The  provision  in  the 
decree  of  sale  which  authorized  the  special  commissioners  "to 
endeavor  to  procure  offers  for  the  property  privately,  and,  if 
they  succeed  in  obtaining  any  such  offers  which  they  shall 
deem,  or  be  advised,  should  be  reported  to  the  court,  they 
shall  report  such  offers  in  vacation,  when  the  court,  if  it 
approves  them,  will  authorize  the  acceptance  of  such  bids  and 
direct  how  they  shall  be  carried  out,"  was  not  to  the  prejudice 
of  the  appellants,  but  was  one  of  the  means  which  the  court, 
in  the  exercise  of  its  discretion,  had  the  right  to  adopt  in 
order  to  obtain  the  best  price  for  the  property  to  be  sold.  98 
Va.  21. 

Dav  to  redeem  must  be  ffiven  in  the  decree  foreclosing  a 
mortgage,  a  vendor's  lien  and  requiring  the  purchaser  at  a 
judicial  sale  to  pay  the  purchase  money.  29  Gratt.  355 ;  but 
it  is  not  error  per  se  to  decree  a  sale  of  property  to  enforce 
judgment  liens,  without  giving  time  to  redeem,  as  in  the  fore- 


124:  Legal   Aphoeisms, 

closure  of  mortgages.  We  think  such  a  practice  ought  in 
general  to  be  pursued ;  and,  where  it  is  not,  and  the  debtor 
shows  that  he  has  been  damaged  unjustly  by  its  not  being 
pursued,  we  are  not  prepared  to  say  that  it  would  not  be  good 
ground  for  setting  aside  the  proceeding.   23  Gratt.  8'51. 

Order  for  delivery  of  possession  of  the  land  to  the  pur- 
chaser. 30  Gratt.  533.    Form  of  order.   28  Gratt.  179. 

Caveat  Emptor. — In  Virginia,  as  to  all  judicial  sales,  the 
maximum  caveat  emptor  strictly  applies.  The  court  under- 
takes to  sell  only  the  title,  such  as  it  is,  of  the  parties  to  the 
suit,  and  it  is  the  duty  of  the  purchaser  to  ascertain  for  him- 
self whether  the  title  of  these  parties  may  not  be  impeached 
or  superseded  by  some  other  and  paramount  title ;  and  if  he 
have  just  grounds  of  objection  for  want  or  defect  of  title,  he 
should  present  them  to  the  court  before  the  confirmation  of 
the  report  of  sale.  And  it  is  not  only  the  duty  of  the  pur- 
chaser to  look  to  the  title  of  the  parties  in  the  cause,  but  also 
to  see  that  all  who  have  an  interest  in  the  property,  and  whose 
rio-hts  ouffht  to  be  bound  bv  the  decree,  have  been  made 
parties,  and  have  been  so  concluded  by  the  decree  under 
which  he  buys.  The  court  of  chancery  employs  its  officers  to 
investigate  titles,  but  does  not  warrant  them.    9  Gratt.  358. 

Right  of  Purchasee  to  Have  an  Order  to  Enquire  Whether 
a  Good  Title  Can  Be  Made  to  Him. — In  Virginia  it  would 
seem  that  the  proper  time  for  making  objections  to  the  title, 
and  for  having  an  inquiry,  if  one  is  desired,  is  before  the  con- 
firmation of  the  report.  2  Gratt.  198;  13  Gratt.  212.  Where 
difficulties  occur  in  making  out  a  good  title,  the  purchaser 
should  not  pay  the  purchase  money  or  take  possession  of  the 
property  until  every  obstacle  is  removed,  or  he  will  bo  held 


Legal   AmoRiSMS.  125 

to  have  waived  every  objection  to  the  title.  13  Gratt.  212 ; 
22  Gratt.  99.  According  to  the  English  practice,  either  party 
may  have  the  report  of  a  commissioner  upon  the  title.  *  *  * 
but  in  Virginia,  the  rule  is  not  universal,  and  a  reference  to  a 
commissioner  is  often  refused  where  the  facts  are  all  before 
the  court.  *  *  *  A  reference  to  a  commissioner  may  be  very 
proper,  and  is  often  had  where  the  title  is  doubtful  and  ob- 
scure, or  depending  on  matter  i)i  pais.  But  when  the  court 
is  in  full  possession  of  all  the  evidence,  no  possible  advantage 
can  result  from  an  enquiry  by  a  commissioner.  14  Gratt.  102, 
128.   76  Va.  343. 

In  judicial  sales  the  court  in  some  sense  is  regarded  as  the 
vendor,  making  sale  by  a  commissioner  as  its  agent,  and  the 
contract  is  treated  as  a  contract  substantially  between  the  pur- 
chaser on  one  side  and  the  court  as  vendor  on  the  other. 
Where  the  title  is  retained,  the  proceeding  for  resale,  whether 
by  bill  or  in  the  more  summary  way,  by  rule,  is  a  proceeding 
substantially  by  the  court  as  vendor,  to  enforce  the  collection 
of  the  purchase  money  by  enforcing  the  lien  incident  to  the 
title  retained  as  security,  and  must  be  governed  by  the  same 
rules  and  principles  which  control  proceedings  of  a  like 
nature  in  a  like  case  by  any  other  vendor.    29  Gratt.  356. 

Form  of  decree  for  sale  to  pay  judgments.   26  Gratt.  361. 

Form  of  decree  for  private  sale.   98  Va.  21. 

The  court  considers  itself  to  have  greater  power  over  the 
contract  of  sale  when  it  is  made  under  a  decree,  than  when  it 
is  made  between  party  and  party.  2  Dan.  Chy.  Pr.  1465  ;  13 
Gratt.  214. 

Where  the  legal  title  is  held  by  a  trustee,  the  trustee,  as   '^ 
trustee,  may  be  authorized  to  make  the  sale  under  the  super- 


126  Legal    Aphoeisms. 

vision  and  control  of  the  court.  21  Gratt.  339  ;  85  Va.  198  ;  82 
Va.  194 ;  after  having  given  bond,  20  Gratt.  256  ;  by  trustee  as 
commissioner,  98  Va.  613,  26  Gratt.  908,  24  Gratt.  280 ;  by 
Commissioners,  93  Ya.  699,  33  Gratt.  687 ;  by  sheriff  ap- 
pointed commissioners  for  the  purpose,  21  Gratt.  432;  and 
by  the  marshal,  6  Gratt.  44.  In  the  case  of  Crenshaw  v.  Seig- 
fried,  24  Gratt.  280,  the  court  says:  The  court  in  the  exercise 
of  a  sound  discretion,  had  authoritv  to  substitute  commis- 
sioners  of  sale  in  lieu  of  the  trustees  named  in  the  deed,  and 
in  the  case  of  Roller  v.  Pitman,  98  Ya.  613,  where  the  trus- 
tees named  in  the  deed,  which  provided  for  5  per  cent,  com- 
missions to  the  trustee  in  the  event  of  a  sale,  were  appointed 
special  conunissioners  to  sell  the  real  estate,  and  the  commis- 
sioners, in  their  report  of  sale,  credited  themselves  with  a 
commission  on  the  gross  sale  of  five  per  cent.,  and  this  report 
was  not  excepted  to  and  confirmed  by  the  court  and  affirmed 
on  appeal,  no  question  as  to  the  propriety  of  the  commissions 
charged  having  been  raised,  the  court  held  that  the  question 
of  commissions  was  beyond  the  reach  of  judicial  inquiry. 

Jurisdiction.  See  Corporations. 
Jurisdiction  may  be  defined  to  be  the  right  to  adjudicate 
concerning  the  subject  matter  in  a  given  case.  To  constitute 
this,  there  are  three  essentials:  First,  the  court  must  have 
cooiiizance  of  the  class  of  cases  to  which  the  one  to  be  ad- 
judged  belongs ;  second,  the  proper  parties  must  be  present ; 
and,  third,  the  point  decided  must  be,  in  substance  and  effect, 
within  the  issue.  1  Black  on  Judg.,  sec.  242 ;  102  Ya.  337. 
The  power  to  hear  and  determine  a  cause  is  jurisdiction.  92 
Ya.  656.   It  is  acquired  by  a  court  by  the  issue  and  service  of 


Legal    Ai'iiorisms.  127 

process,  and,  in  a  case  of  conflict  of  jurisdiction,  the  priority 
of  jurisdiction  is  determined  by  the  date  of  the  service  of  the 
process.   95  Va.  28'0. 

Jurisdiction    can    no    niurc  be  conferred    than  it  can  be 
taken  away  by  improper  devices  of  parties.    75  Va,  067 ;  79 
Va.  2S.     In    the    case  of  Ilansbrough  v.  Stinnett,  22  Gratt. 
593,  the  court  held  that  the  right  to  an  appeal  could  not  be 
taken  away  by  releasing  a  part  of  the  damages  found  by  the 
jury.     And  in  the  case  of  Bush.  v.  Campbell,  26  Gratt,,  on 
page  432,  the  court  say:  The  learned  counsel  further  insists 
that  under  this  construction  of  the  statute,  a  person  may  be 
joined  as  a  defendant,  merely  to  exclude  him  as  a  witness,  or 
for  the  purpose  of  giving  jurisdiction  to  the  court  of  a  par- 
ticular county  a2;ainst  a  non-resident  defendant.     It  is  suffi- 
cient  to  say  that  conduct  of  this  kind  would  be  treated  as  a 
fraud  upon  the  non-resident,  and  an  abuse  of  the  process  of 
the  court.     The  exj>osure  would  be  easy,  and  the  punishment 
immediate,  in  the  dismissal  of  the  suit  as  to  such  non-resi- 
dent, or  in  the  prompt  discharge  of  the  defendant,  where 
testimony  is  thus  sought  to  be  excluded;    and  on  page  435: 
If  the  process  of  the  court  is  abused,  and  a  mere  pretext  made 
to  give  a  color  of  jurisdiction,  the  corrective  power  of  the 
court  will  be  used  in  punishing  the  offence  by  a  prompt  dis- 
missal of  the  suit  at  the  cost  of  the  offending  party.    See,  also, 
Sanger  v.  C.  &  O,  R.  R.  Co.  102  Va,  86;  S.  C,  45  N.  E.  R. 
750.     Plaintiff  cannot,  for  the  purpose  of  obtaining  jurisdic- 
tion over  a  party  non-resident  of  the  county,  improperly  join 
one  who  is  a  resident.     2()  Gratt.  432  ;   49  Mo.  252, 

In  a  case  of  concurrent  jurisdiction  a  party  may  elect  be- 
tween his  legal  and  equitable  remedies.  But  having  once 
made  his  election,  he  is  bound  by  it.     25  Gratt.  153, 


128  Legal    Aphorisms. 

When  Pendency  of  One  Suit  May  Be  Set  Up  to  Defeat 
Anot]ie)\ — In  Wick  v.  Jones,  4  Wallace,  the  Supreme  Court 
of  the  United  States  said :  When  the  pendency  of  a  suit  is  set 
up  to  defeat  another,  the  case  must  be  the  same;  there  must 
be  the  same  parties,  or  at  least  such  as  represent  the  same 
interest ;  there  must  be  the  same  rights  asserted,  the  same 
relief  prayed  for — the  relief  must  be  founded  on  the  same 
facts,  and  the  title  or  essential  basis  of  relief  must  be  the 
same.  76  Va.  27.  In  both  suits  the  parties  shall  be  the  same, 
or  at  least  shall  be  such  as  represent  the  same  interests ;  that 
the  first  suit  shall  be  for  the  same  matter  as  the  second 
(though  the  second  suit  need  not  be  for  the  whole  matter  em- 
braced in  the  first),  and  that  the  whole  effect  of  the  second 
suit  shall  be  attainable  in  the  first.   97  Va.  5-iS. 

JUEY. 

It  is  the  proper  province  and  duty  of  the  jury,  to  weigh 
and  consider  evidence,  and  decide  all  questions  of  fact,  and 
that  the  responsibility  of  a  correct  decision  is  placed  upon 
them.  And  the  safety,  efficacy  and  purity  of  jury  trial  depend 
upon  the  steady  maintenance  and  practical  application  of  this 
principle.    Shaw,  C.  J.,  51  Mass.  270. 

The  most  usual  mode  of  obtaining  the  opinion  of  the  court 
on  points  of  law,  is  for  the  party  desiring  it  to  move  the  court 
to  instruct  the  jury.  All  that  is  necessary  for  this  purpose  is 
for  him  to  state  his  case  hypothetically ;  and,  if  it  be  perti- 
nent to  the  cause,  the  court  is  bound  to  pronounce  the  law  on 
the  case  thus  stated.  This  is  no  invasion  of  the  rights  of  the 
jury;  for  if  the  jury  shall  believe  that  the  case  as  proved  is 
different  from  that  stated  by"  the  party,  the  opinion  of  the 
court  having  no  application  to  the  case  as  provcnl,  can  have 


Legal   Aphorisms,  129 

IK)  influence  on  the  verdict  of  the  jury.  Cabell,  J.,  5  Raud. 
11)4;  1  Rob.  (old)  Pr.  342.  The  presumption  is  that  the  jury 
is  present  during-  the  whole  progress  of  the  trial.  It  may  some- 
times happen  that  the  jury  may  be  temiDorarily  absent  during 
the  discussion  of  a  question  of  law  arising  in  a  case.  But  this 
rarely  occurs;  and  when  it  does  occur,  the  party  interested  in 
the  fact  should  take  care  to  have  it  stated  in  the  record.  In 
the  absence  of  such  a  statement,  the  appellate  court  will  pre- 
hLune  that  that  occurred  which  generally,  rather  than  that 
which  very  rarely,  occurs.  Moncure,  J.,  11  Gratt.  405.  ^Yhen 
the  jury  have  found  a  verdict  substantially,  it  is  read  to  them 
in  form.  If  any  juror  does  not  agree  to  it  when  so  read,  he 
may  express  his  dissent,  and  the  jury  may  retire  and  revise 
the  verdict.  But  if,  when  asked  in  the  usual  manner  whether 
they  agree  to  the  verdict,  they  all  answer  in  the  affirmative, 
it  w^ill  be  sufficient  to  authorize  it  to  be  recorded.  Per  curiam. 
21  Mass.  242.  And  it  is  believed  that'  this  is  the  prevailing 
rule  in  Virginia,  at  least,  in  civil  jury  trials. 

Jus  DlSPONENDI. 

For  principles  governing  a  man's  right  to  dispose  of  his 
property,  see  26  Gratt.  366. 

Justice  Court.   See  Corporations. 

Labor  Organizatioivs. 
Legality  of,  113  Mass.  179. 

Laches. 

'  The  maxim  that  the  law  assists  those  who  are  viailant, 
not  those  who  sleep  over  their  rights,  applies  not  only  to  the 
operation  of  statutes,  but  to  the  action  of  suitors  in  the  con- 
duct of  their  causes.   33  Gratt.  740;  98  Va.  124. 


130  Legal   Aphorisms. 

Land. 

When,  and  as  soon  as  a  valid  contract  is  made  for  the  sale 
of  land,  eqnity,  which  looks  npon  things  agreed  to  be  done  as 
actually  performed,  considers  and  treats  the  vendor  as  a  trus- 
tee for  the  purchaser  of  the  estate  sold  and  the  purchaser  as  a 
trustee  of  the  purchase  money  for  the  vendor,  1  Sug.  on 
Vend.  191  (bottom).  The  purchaser  is  deemed  and  treated  as 
the  equitable  owner  of  the  land ;  and  subject  to  the  lien  of 
the  unpaid  purchase  money,  the  title  being  retained,  the 
equitable  estate  of  the  purchaser  is  alienable,  devisable,  and 
descendible,  in  like  manner  as  real  estate  held  by  legal  title. 
1  Story's  Eq.  Ju.,  sees.  780-790,  and  other  authorities;  75 
Va.  340. 

A  license  is  a  permission  or  authority  to  enter  the  land 
and  do  certain  acts,  or  series  of  acts,  the  parties  not  intending 
to  convey  anv  interest  in  the  land.  *  *  *  Thus  a  license  to 
enter  land  and  cut  the  timber,  or  to  gather  the  growing  crops ; 
so  an  agreement  for  a  seat  in  a  theatre,  or  other  place  of 
amusement,  is  a  license  merely.  So,  ordinarily,  an  agree- 
ment for  lodgings  in  a  boarding  house,  though  the  rooms  the 
boarder  is  to  occupy  are  designated,  does  not  create  an  interest 
in  land,  but  is  merely  a  license — and  so  the  use  of  a  hall,  not 
to  be  continuous,  but  only  occasional  and  for  a  few  hours  on 
four  separate  days,  and  was  not  to  have  the  exclusive  occu- 
pation and  control  of  it,  but  the  key  was  never  delivered  to 
him,  but  remained  with  the  owner,  who,  on  the  afternoons  it 
was  occupied  under  the  contract,  opened,  lighted  and  closed 
it — it  was  a  mere  license,  139  Mass.  4.  A  license  unper- 
formed may  be  revoked,  but  the  party  revoking  must  respond 
in  damages  for  the  breach  of  a  contract  for  a  license.   Idem. 


Legal   Apjiokisms.  131 

Landlokd  AST)  Texjvaxt. 

A  mero  trespass,  however,  aggravated,  does  not  amount 
to  an  eviction.  22  Gratt.  131 ;  but  other  acts  of  the  landlord 
going  to  diminish  the  enjoyment  of  the  premises,  besides  an 
actual  expulsion,  will  exonerate  from  the  papnent  of  rent. 
8  Cow.  732;  100  ]\rass.  201.  Acts  of  a  grave  and  permanent 
character  which  amount  to  a  clear  intention  on  the  landlord's 
part  to  deprive  the  tenant  of  the  enjoyment  of  the  demised 
premises,  amount  to  eviction.  20  Am.  11.  117;  120  X.  Y. 
345;  37  Am.  St.  E.  248  and  note,  as  where  the  premises, 
through  the  landlord's  neglect  of  duty,  become  untenable. 
130  111.  137;  29  Am.  St.  E.  300;  48  Idem.  515. 

Landlord's  liability  for  the  condition  of  the  premises  at 
the  time  of  the  lease.    0  Va.  L.  Keg.  799 ;  7  Id.  151. 

Landlord's  liability  to  stranger  or  person  visiting  the 
tenant  for  defective  premises.  120  Mass.  374;  8  Va.  L.  Reg. 
222. 

Landlord's  liability  for  defective  premises.  6  Va.  L.  Reg. 
799;  7  Id.  151,430. 

A  contract  of  lease  is  from  January  1st  to  December  31st. 
The  tenant  holds  over.  The  tenancy  terminates  on  December 
31st,  and  on  January  1st  both  dates  given  in  the  opinion.  On 
that  day  a  new  term  commenced.   27  Gratt.  214. 

That  defendant  held  as  tenant  of  the  plaintiff,  and  not 
adversary,  was  a  fact  w^hich  could  be  proved  by  parol  evi- 
dence, and  need  Udt  of  necessity  be  proved  by  the  production 
of  the  lease,  though  there  may  have  been  no  reason  for  its  non- 
production.  It  is  Avell  settled  in  England  that  the  existence 
of  a  tenancy  between  thc^  parties  may  be  shown  by  parol, 
though  the  demise  be  in  writing.     If  the  fact  of  the  occupa- 


132  Legal   Aphorisms. 

tion  of  land  is  alone  in  issue,  without  respect  to  the  terms 
of  the  tenancy,  this  fact  may  be  proved  by  any  competent 
oral  testimony,  such  as  payment  of  rent,  or  declarations  of 
the  tenant ;  notwithstanding  it  appears  that  the  occupancy 
was  under  an  agreement  in  writing;  for  here  the  writing  is 
only  collateral  to  the  fact  in  question.    21  Gratt.  19. 

Although  a  tenant  "cannot  show  that  his  lessor  had  no 
title  to  the  j^remises  when  the  tenancy  commenced,  he  may 
show  that  the  landlord  holds  in  violation  of  the  laws  of  the 
State,  or  that  his  interest  has  since  expired,  or  that  he  has 
sold  and  conveyed  the  land,  or  that  he  has  been  evicted  by 
title  paramount ;  and  that  therefore  he  has  no  right  to  bring 
the  suit."   23  Gratt.  361;  5  Eob.  Pr.  261. 

Damages  for  breach  of  contract  to  repair  cannot  be  set  off 
against  rent.  12  Wend.  5'J  ;  15  Wend.  559.  See  7  Ya.  L. 
Reg.  357 ;  25  Wend.  672  ;  7  Hill  53.  But  it  may  be  recouped. 
7  Hill  53 ;  but  see  93  Va.  685  ;  100  Va.  714. 

iSTo  agreement  as  to  length  of  term— rent  payable  monthly 
— tenant  from  month  to  month.    19  Wend.  393  ;  Id.  619. 

Measure  of  damages  for  failure  to  give  possession  or  when 
tenant  evicted.   Kline  v.  McLain,  33  W.  Va.  32 ;  10  S.  E.  13. 

Notice  to  Quit. — Tenant  disclaiming  becomes  a  trespas- 
ser. 9  Gratt.  229 ;  and  is  not  entitled  to  notice  to  quit.  11 
Gratt.  54&;  24  Gratt.  342. 

When  notice  is  necessary.    9  Gratt.  232. 

A  tenancy  ends  with  the  last  day  of  the  term.  98  Va.  257  ; 
27  Gratt.  214;  but,  see  101  Va.  630.  In  61  Mass.  348,  it 
is  said:  The  expiration  of  the  notice  must  be  with  the  expi- 
ration of  the  quarter,  month  or  week.  A  notice  to  quit,  which 
breaks  into  the  quarter,  month  or  week,  is  not  a  good  notice. 


Legal   Aphorisms.  133 

Comyn.  on  Land  and  Ten.  2<)'.) ;  -2'.]  Wend.  i')l\).  And  in 
Anderson  v.  Prindle,  -lo  Wend.  Oil),  it  is  said:  Llcre  the 
tenancy  from  month  to  month  commenced  on  the  first  of  Sep- 
tember. The  notice  to  quit,  therefore,  if  intended  for  the 
first  of  ^lay^  shonhl  have  been  served  on  or  before  the  first 
of  April.  In  view  of  the  fact  that  considerable  conflict  exists 
as  to  whether  the  notice  to  qnit  shonld  be  given  to  the  last  day 
of  the  term  or  the  first  succeeding  day,  the  suggestion  of  the 
learned  judge  of  the  Supreme  Court  of  ^lassachusetts,  in 
Sanford  v.  Llarvey  and  another,  65  Mass.,  on  page  90,  in  the 
language  quoted  below  is  jjeculiarly  opposite:  If,  for  in- 
stance, in  the  present  case,  the  notice  to  the  landlord  had  been 
that  the  tenant  would  quit  the  premises  and  terminate  his 
tenancy  in  one  month  from  the  day  Avhen  the  rent  should  next 
become  due  and  payable,  that  would  have  been  a  good  notice 
to  terminate  the  tenancy,  because  it  designated  a  day  with 
sufficient  certainty  within  the  knowledge  of  the  tenant  and 
landlord.  Xotice  to  quit  in  this  general  form  are  frequently 
adopted  in  England.    2  Archb.  X.  P.  397,  398. 

A  distress  warrant  cannot  be  levied  upon  goods  removed 
by  a  tenant  of  specific  apartments  to  other  apartments  in  the 
same  house,  after  thirty  days  subsequent  to  the  termination 
of  the  lease  of  the  first  apartments.    1!)  Wend.  554. 

Laws.    Sec  Foiiiis. 

Where  the  reason  for  a  rule  of  law  has  ceased,  the  law 
itself  ought  to  and  does  cease.  Broom's'  Leg.  Max.  (7  Ed.) 
159 ;  98  Va.  408. 

We  must  follow  the  law,  whither  so  ever  it  goeth.  and 
even  though  it  lead  ns  to  apparcnl  injustice  and  hartlship, 
23  Gratt.  359,  and  the  court  is  governed  by  the  principle  of 


134  Legal    Aphorisms. 

the  law  and  not  by  the  hardship  of  any  particuhir  case.    3 

E.ob.  Pr.  73 ;  but,  as  said  bj  Keith,  P.,  in  SpiUman,  Adams 

&  Co.  V.  Gilpin,  93  Va.,  on  page  702 ;  hard  eases  should  not 

make  bad  law,  but  hard  cases  do  and  should  make  the  courts 

vigilant  to  discover  and  pursue  a  mode  by  which,  without 

doing  violence  to  established  law  and  forms  of  procedure,  the 

wrong  may  be  redressed. 

The  rules  of  law  are  not  generally  subject  to  be  altered  by 

statutory  provisions    introduced    for  a  ditferent    object.     2 

Minor  124. 

Pleadings  are  always  evidence  of  the  law,  Buller,  J.,  3  T. 
R.  161 ;  and  books  of  entries  are  the  best  authorities  in  the 
absence  of  decided  cases.  Ashhurst,  J.,  2  T.  R.  10 ;  82  Mass. 
238. 

State  laws  and  decisions  as  rules  of  decision  in  the  Fed- 
eral courts.    11  Va.  L.  Reg.  177  and  note. 

Lien. 

Attorneys'  lien  on  papers  and  on  money  and  property  in 
his  own  hand,  or  which  has  been  brought  into  court  through 
his  efforts.  Fowler  v.  Lewis,  3G  W.  Va.  141,  S.  C. ;  14  S.  E. 
456;  2  Rob.  Pr.  519;  4  Minor  210;  99  Va.  81;  3  A.  &  E. 
Ency.  of  Law  (New  Ed.)  465.  When  he  represents  an  in- 
fant, 1  Dan.  Chy.  81. 

When  creditor  proving  a  debt  is  holder  of  collaterals.  2 
Va.  L.  Reg.  120. 

A  statutory  lien  can  only  exist  when  it  has  been  perfected 
in  the  manner  prescribed  by  the  statute  creating  it.  94  Va. 
702. 

In  Paxton  v.  Rich,  85  Va.  378,  .Tudge  Lewis  said:    The 


Legal    Aphorisms.  135 

lien  (of  a  judgment),  and  the  judgment  are  inseparable,  and 
the  extinguishment  of  the  latter  is  the  extinguishment  of  the 
former.  But  not  so,  where  there  is  a  judgment  for  a  debt 
secured  by  a  mortgage,  deed  of  trust,  or  a  vendor's  lien. 
There  the  lien  is  collateral  to  the  judgment,  and  may  be  en- 
forced in  equity,  although  the  judgment  be  barred  or  annihi- 
lated.   94  Va.  345. 

Life  Estate. 
It  matters  not  how  contingent  or  uncertain  the  duration 
of  the  estate  may  be,  or  how  profitable  is  its  determination,  if 
it  is  capable  of  enduring  for  a  life,  it  comes  within  the  cate- 
gory of  estates  for  life.  1  Wash,  on  Eeal  Pr.  103 ;  32  Gratt. 
756. 

Limitations.   See  Adverse  Possession. 

The  Statutes  of  Limitations  in  former  times  were  no 
great  favorites  with  the  courts.  But  the  spirit  of  modern 
opinion  and  of  modern  legislation  is  to  regard  them  as  stat- 
utes of  repose.  Their  tendency  is  to  afford  protection  against 
stale  demands,  by  requiring  the  early  settlement  of  claims 
when  the  true  state  of  the  transaction  is  known  and  capable 
of  explanation.  29  Gratt.  388.  It  was  said  by  Mr.  Justice 
Swayne  in  Leffiugwcll  v.  Warren,  2  Black  599  :  Statutes  of 
limitations  are  now  regarded  favorably  in  all  courts  of  jus- 
tice ;  they  are  ''statutes  of  rei)0se."  Usually  they  are  fcnmdod 
in  a  wise  and  salutary  policy,  and  promote  the  ends  of  jus- 
tice; and  ill  1>(H  v.  Morrison,  1  Peters  360,  Story,  J.,  said: 
"The  statute  of  limitations  was  intended  to  be,  emphatically, 
a  statute  of  repose.  It  is  a  wise  and  beneficent  law,  not  de- 
signed merely  to  raise  the  prcsuiuptidu  of  payment  of  a  just 
debt,  from  lapse  of  time,  but  to  afford  security  against  stale 


136  Legal    Aphoeisms. 

demands  after  the  true  state  of  the  transaction  may  have  been 
forgotten  or  be  incapable  of  exxolanation,  by  reason  of  the 
death  or  removal  of  witnesses. 

The  same  strictness  of  pleading  is  not  required  in  equity 
as  at  law.  It  is  not  common  to  plead  the  statute  specially  or 
formally  in  equity ;  but  only  to  rely  upon  it  in  genei'al  terms 
in  the  answer.  The  only  reason  for  requiring  the  defence  to 
be  made  by  plea  or  answer  is  that  the  plaintiff  may  have  an 
opportunity,  if  he  can,  to  take  the  case  out  of  the  operation 
of  the  statute.  Anything  in  the  answer  which  will  apprise 
the  i^laintiff  that  the  defendant  relies  on  the  statute  will  be 
sufficient,  if  such  facts  be  averred  as  are  necessary  to  show 
that  the  statute  is  applicable.   13  Gratt.  344;  99  Va.  226. 

It  is  competent  for  parties  to  agree,  on  sufficient  consid- 
eration, that  the  time  for  payment  should  be  postponed,  or 
that  payment  should  only  be  made  on  a  future  contingency. 
7  Gratt.  391;  1  Rob.  Pr.  629;  2  Munf.  316,  and  conse- 
quently by  agreement  postpone  the  time  from  which  the 
statute  should  begin  to  run.  Randon  v.  Toby,  11  How.  (U. 
S.)  519;  1  Rob.  Pr.  629. 

An  account  settled  and  agreed  between  merchant  and  mer- 
chant takes  it  out  of  the  exception.     3  H.  &  M.  10-1. 

Where  there  are  mutual  accounts  between  plaintiff  and 
defendant,  an  item  of  the  account  on  either  side  accrued 
within  six  years  (5  years  in  Virginia,  V.  C.  2920)  next  be- 
fore suit  brought  draws  after  it  the  accounts  on  both  sides, 
and  takes  a  case  out  of  the  operation  of  the  statute  of  limita- 
tions. Sickles  V.  Mather,  20  Wend.  72.  Replication  to  plea 
that  at  the  time  of  the  sale  of  the  goods,  ''the  plaintiff  and  the 
defendant  were  merchants,  and  that  the  goods  were  sold  and 


Legal   Aphorisms.  137 

delivered  by  the  plaintiff  as  such  merchant,  to  the  defendant 
as  such  merchant."   15  Gratt.  493. 

Election  of  remedies  and  its  effect  on  the  Statute  of  Limi- 
tations. There  are  cases  where  an  injured  party  may  have 
his  election  of  remedies,  as  where  there  has  been  a  tortious 
taking  of  his  property,  he  may  bring  trespass  or  trover,  or  he 
may  waive  both  and  bring  assumpsit  for  the  proceeds  when  it 
shall  have  been  converted  into  money.  And  if  he  chooses  the 
latter  mode  of  redress,  the  tort  feason  cannot,  we  think,  allege 
his  own  wrong  for  the  purpose  of  carrying  back  the  injury  to 
a  time  which  will  let  in  the  statute  of  limitations.  Lamb  v. 
Clark,  5  Pick.  197 ;  17  Gratt.  132 ;  6  Eand.  457. 

In  brin2:in2:  an  action  for  monev  had  and  received,  instead 
of  trover,  the  plaintiff  does  no  more  than  waive  any  com- 
plaint, with  a  view  to  damages,  of  the  tortious  act  by  which 
the  goods  were  converted  into  money,  and  takes  to  the  net 
proceeds  of  the  sale  as  the  value  of  the  goods;  subject,  of 
course,  to  all  the  consequences  of  considering  the  demand  in 
question  as  a  debt,  and  amongst  others  to  that  of  the  defend- 
ant having  a  right  of  set-oft',  if  he  should  happen  to  have  any 
counter-demand  against  the  jilaintift'.  Hunter  v.  Prinse]),  10 
East.  392 ;  3  Eob.  Pr.  399. 

When  the  statute  once  begins  to  run  by  a  removal  of  the 
disability  against  an  insane  person  or  lunatic  who  is  restored 
to  sanity,  it  continues  to  run,  notwithstanding  insanity  of  the 
person  whose  rights  are  to  be  affected  by  the  bar,  again  sujier- 
venes.  4  T.  E.  307;  4  Taunt.  825;  Angel  on  Lim.  147; 
Clark  V.  Trail,  1  Mete.  (Kty.)  35. 

In  case  of  fraud,  the  authorities  are  conHieting,  whc^ther 
nt  law  the  statute  begins  to  run  from  the  commission  of  the 
fraud,  or  from  its  discovery.     In  equity,  however,  it  would 


138  Legal   Aphoeisms. 

seem  to  be  well  settled  that  the  statute  begins  to  run  from  the 
discovery  of  the  fraud.     29  Gratt.  760. 

Matters  of  avoidance.    6  Va.  L.  Reg.  55S;  97  Va.  42. 

The  statute  cannot  be  availed  of  as  a  defence  either  at  law 
or  in  equity,  bv  demurrer;  defence  to  a  pure  statute  of  limi- 
tation (as  distinguished  from  a  special  limitation  prescribed 
by  statute  creating  a  new  right,  for  example,  six  months' 
limitation  under  the  mechanics'  lien  law,  etc.)  is  by  plea  or 
answer  and  not  by  demurrer.  6  Va.  L.  Reg.  508  ;  99  Va.  227. 
And  in  33  Gratt.  11,  the  defence  in  the  answer  was  made  as 
follows:  This  resj^ondent  relies  on  the  defence  of  the  statute 
of  limitations  as  if  specially  pleaded,  and  on  the  length  of 
time  which  has  elapsed  since  the  said  transaction  now  com- 
plained of  took  place  and  the  changed  condition  of  affairs  as 
ground  for  refusing  to  entertain  the  complainant's  bill. 

Quere. — When  the  statute  fixes  a  special  limitation,  as, 
for  instance,  of  a  mechanic's  lien,  can  a  personal  representa- 
tive claim  the  benefit  of  section  2919  of  the  code.  6  Va.  L. 
Reg.  583. 

Form  of  instruction  on  pure  statute  of  limitations  when 
no  opportunity  to  plead  the  statute  is  given.   92  Va.  22. 

There  is  a  recognized  distinction  between  the  statute  of 
limitations  and  the  presumption  of  payment  from  the  lapse 
of  time,  the  condition  of  the  parties,  their  relation  to  each 
other,  &c.  In  the  one  case  the  bar  is  absolute ;  in  the  other 
it  is  denominated  natural  presumption  of  payment,  and  may 
be  rebutted.    91  Va.  514. 

Lis  Pendens. 
At  common  law  and  in  chancery  and  under  the  statute.     2 
Rand.  101,  et  seq. 


Legal    Aphorisms.  139 

The  rule  as  to,  and  its  effect.     24  Gratt.  471. 
Form  of.   24  Gratt.  471 ;  Sam's  Att.  IGl. 

Lost  Property. 

How  to  determine  title  to.    1  Va.  Leg.  937. 
Malicious  Arrest  axd  Imprisonment  for  Debt. 
Burden  is  on  plaintiff  to  show  want  of  probable  cause  and 
malice.   75  Va.  179. 

Marshalling  Assets. 
2  Va.  L.  Eco-.  701 ;  6  Id.  626. 

Marshalling  Securities. 

It  is  a  rule  of  equity  said  to  be  well  established  in  this 
country,  that  when  one  has  a  lien  upon  two  funds,  and  an- 
other a  posterior  lien  upon  only  one  of  them,  the  former  will 
be  compelled,  first,  to  exhaust  the  subject  of  his  exclusive 
lien,  and  will  be  permitted  to  resort  to  the  other  only  for  the 
deficiency;  but  this  rule  is  generally  applied,  it  seems,  only 
in  cases  where  to  compel  a  resort  to  the  singly  charged  fund 
would  not  be  productive  of  any  additional  risk,  injury  or 
delay  to  the  double  creditor.  33  Gratt.  581 ;  2  Va.  L.  Reg. 
625 ;  6  Va.  L.  Eeg.  48 ;  8  Va.  L.  Eeg.  631-2.  But,  see  2  Va. 
L.  Eeg.  701. 

Where  the  doubly  secured  creditor  is  met  by  a  posterior 
creditor  secured  on  each  fund.     2  Va.  L.  Eeg.  625. 

Master  and  Servant. 
Injury  to  servant  from  defective  instrumentalities.   4  Va. 
L.  Eeg.  607.    In  process  of  destruction,  McFarland  v.  Mfg. 
Co.  97  111.  (Ajip.)  629,  631. 


140  Legal   Aphorisms. 

Memorandum  for  Clerk. 
Is  an  official  record.  102  Va.  334.  Is  the  chart  by  which 
the  clerk  is  to  be  giiicled  in  maturing  the  cause  for  hearing, 
so  far  as  parties  are  concerned.  Id.  332.  Is  a  document  by 
which  an  error  in  the  writ  may  be  amended,  on  the  ground  of 
clerical  misprision.     Marshall,  C.  J.,  2  Brock  14. 

Merger. 
The  doctrine  of  merger  is  well  understood.  It  is  described 
as  the  annihilation  of  one  estate  in  another.  It  takes  place 
usually  when  a  greater  estate  and  a  less  coincide  and  meet 
in  one  and  the  same  person,  without  any  intermediate  estate, 
whereby  the  less  is  immediately  merged — that  is,  drowned  in 
the  greater.  To  this  result  it  is  necessarv  that  the  two  estates 
should  be  in  one  and  the  same  person,  at  one  and  the  same 
time,  in  one  and  the  same  right.  Garland  v.  Pamplin,  32 
Gratt.  305,  315 ;  75  Va.  727. 

Mistake. 

The  distinction  between  mistakes  of  law  and  of  fact,  as  a 
foundation  of  equitable  relief.    21  Gratt.  320. 

An  error  of  fact  takes  place,  either  when  some  fact  which 
really  exists  is  unknown,  or  some  fact  is  supposed  to  exist, 
which  really  does  not  exist.  But  when  a  person  is  truly  ac- 
(piainted  with  the  existence  or  non-existence  of  the  facts,  but 
is  ignorant  of  the  legal  consequences,  he  is  under  an  error  of 
law.     1  Wend.  360;  20  Wend.  170. 

To  obtain  relief  on  the  ground  of  mistake  in  a  written 
contract  and  especially  a  contract  coniiug  within  the  purview 
of  the  statute  of  frauds,    the    mistake    sbjiild  be  fully  and 


Legal    Ai'iloki.sms.  141 

clearly  proved.  Thompson  v.  Jackson,  3  Rand.  504.  In  all 
such  cases,  says  Story,  if  the  mistake  is  clearly  made  out  by 
proofs  entirely  satisfactory,  equity  will  reform  the  contract, 
so  as  to  make  it  conformable  to  the  precise  intent  of  the 
parties.  But  if  the  proofs  are  doubtful  and  unsatisfactory, 
and  the  mistake  is  not  made  entirely  plain,  equity  will  with- 
hold relief,  upon  the  ground  that  the  written  paper  ought  to 
be  treated  as  a  full  and  correct  expression  of  the  intent,  until 
the  contrary  is  established  beyond  reasonable  controversy.  1 
Story  Eq.  Jur.,  sec.  152.  And  again  he  says:  Relief  will  be 
granted  in  the  case  of  written  instruments  only  where  there 
is  a  plain  mistake  clearly  made  out  by  satisfactory  proofs.  It 
is  true  that  this,  in  one  sense,  leaves  the  rule  somewhat  loose, 
as  every  court  is  still  to  say  what  is  a  plain  mistake,  and  what 
are  proper  and  satisfactory  proofs.  But  the  qualification  is 
most  material,  since  it  cannot  fail  to  o^^rate  as  a  weighty 
caution  upon  all  judges ;  and  it  forbids  relief  whenever  the 
evidence  is  loose,  equivocal,  contradictory,  or  in  its  texture, 
open  to  doubt  or  opposing  presumptions.  Id.  sec.  157;  9 
Gratt.  279.   See,  also,  29  Gratt.  353. 

Where  a  seal  is  omitted  to  a  deed  of  conveyance  or  to  a 
bond  by  accident  or  mistake  a  court  of  equity  will  grant 
relief.  In  the  case  of  Trustees,  &c.  v.  Bryson,  34  S.  Ca.,  416 
S.  C. ;  13  S.  E.  619,  624.  But  it  is  contended  that  the  paper 
purporting  to  be  a  conveyance  of  the  land  in  cpiestion  to  the 
appellant  lacks  a  seal,  and  therefore  could  not  operate  as  a 
transfer  of  the  legal  title ;  that,  at  most,  the  ap^iellant  has 
only  an  equity  which  must  yield  to  the  alleged  su^x^rior 
equity  of  the  plaintiifs.  It  will  be  observed  that  the  terras 
of  the  paper  itself  show  conclusively  that  it  was  not  intended 


142  Legal   Appiorisms. 

as  a  mere  asreement  to  convey,  but  as  an  actual  conveyance. 
It  has  all  the  essential  elements  of  a  conveyance  of  real  estate, 
except  the  seal ;  and  its  omission  was  clearly  accidental,  and 
certainly  not  intentional.  It  concludes  with  the  words :  "Wit- 
ness my  hand  and  seal,"  and  purports  to  have  been  "signed, 
sealed  and  delivered"  in  the  presence  of  two  subscribing  wit- 
nesses, one  of  whom  goes  before  the  proper  officer  and  makes 
affidavit  that  he  saw  the  grantor  "sign,  seal,  and  as  his  act  and 
deed  deliver  the  within  written  deed,"  And  the  paper  is 
spread  upon  the  records  of  the  proper  office  as  a  deed ;  so  that 
there  cannot  be  a  doubt  that  the  intention  was  to  execute  a 
formal  deed,  and  the  parties,  as  well  as  the  witnesses,  together 
with  the  recording  officer,  manifestly  supposed  that  the  paper 
was  what  it  was  intended  to  be — a  valid  deed.  This  being 
the  case,  a  court  of  equity  will  regard  the  paper  as  a  deed, 
and  will  supply  this  accidental  omission  of  the  seal.  1  Pom. 
Eq.  Jur.,  sec.  383;  Wadsworth  v.  Wendell,  5  Johns.  Chy. 
224 ;  Bernard's  Tp.  v.  Stebbins  (cited  also  as  Inhabitants  v. 
Stebbins),  109  U.  S.  341,  S.  C. ;  27  L.  C.  P.  956;  Pope  v. 
Montgomery,  24  S.  Ca.  595.  See,  also,  24  Vt.  181 ;  15  E.  I. 
195.  In  Gaylord  v.  Pelland,  169  Mass.  359,  S.  C. ;  47  K  E. 
1019,  the  principle  is  applied  where  there  was  the  accidental 
omission  of  a  seal  on  a  mortgage.  See  Roses  notes  to  the  U. 
S.  Decisions  to  the  case  of  Inhabitants  v.  Stebbins  uhi  supra. 
Whilst  mistake,  in  matter  of  law,  cannot  in  general  be 
admitted  as  ground  of  relief,  the  maxim  juris  ignorantia 
non  excusat  is  not  universally  applicable  in  equity.  "Mistake 
in  law,  to  be  a  ground  of  relief  in  equity,  must  be  of  a 
material  nature,  and  the  determining  ground  of  the  transac- 
tion." *  *  *     It  may  be  a  misapprehension  of  the  law,  or  of 


Legal   Aphorisms.  143 

their  rights,  by  both  parties,  "or  it  may  be  a  misapprehension 
of  the  law,  or  of  his  private  right,  by  one  of  the  parties  alone. 
Kerr  on  Fr.  (S:  .Mis.  :]!)().   Brown  v.  Rice,  20  Gratt.  470. 

Mortality  Tables. 
As  evidence  of  the  dnration  of  life.  100  Va.  8(32.  These 
tables  were  made  for  the  purpose  of  life  insurance  and  an- 
nuities, where  the  very  shortest  time  is  fixed  as  affecting 
pecuniary  risks.  They  are  regarded  as  falling  short,  in  most 
instances,  of  the  actual  duration  of  human  life.  Mulcains  v. 
City  of  Janesville,  67  Wis.  37;  100  Va.  371. 

Mortgage. 

It  is  true  that  in  discussions  in  courts  of  equity  a  mort- 
gage is  sometimes  called  a  lien  for  a  debt.  And  so  it  certainly 
is,  and  something  more ;  it  is  a  transfer  of  the  property  itself, 
as  security  for  the  debt.  This  must  be  admitted  to  be  true  at 
law;  and  it  is  equally  true  in  equity;  for  in  this  respect 
equity  follows  the  law.  It  does  not  consider  the  estate  of  the 
mortgagee  as  defeated  and  reduced  to  a  mere  lien,  but  it 
treats  it  as  a  trust  estate,  and  according  to  the  intention  of 
the  parties,  as  a  qualified  estate,  and  security.  When  the 
debt  is  discharged,  there  is  a  resulting  trust  for  a  mortgagor. 
It  is  therefore  onlv  in  a  loose  and  general  sense  that  it  is 
sometimes  called  a  lien,  and  then  only  by  way  of  contrast  to 
an  estate  absolute,  and  indefeisible.  Conrad  v.  The  Atl.  Ins. 
Co.,  1  Pet  (U.  S.)  441. 

If  the  instrument  be  made  as  a  security  for  the  payment 
of  a  debt,  or  the  performance  of  a  duty,  it  is  a  mortgage. 
And  the  substance,  and  not  the  mere  form,  of  the  instrument 
is  to  be  regarded.    It  is  of  no  consequence  that  it  is  called  by 


144  Legal    Aphorisms. 

a  wrone'  name.  The  effect  of  the  instrument  will  ascertain  its 
legal  character.    18  Pick.  304. 

Once  a  mortgage,  always  a  mortgage.  The  equity  of  re- 
demption is  an  inseparable  equitable  incident  of  every  mort- 
gage. It  is  wholly  a  creature  of  equity,  and  cannot  be  de- 
feated, restrained,  evaded,  or  in  any  way  impaired  by  agree- 
ment of  parties  as  long  as  the  mortgage  continues  a  security. 
An  irredeemable  mortgage  is  a  legal  solecism.  Hence  the  ex- 
pression "once  a  mortgage,  always  a  mortgage."  What  is 
meant  by  this  is,  that  whenever  and  as  soon  as  a  mortgage  is 
created  by  the  act  of  the  j^arties,  equity  at  once  annexes  in- 
separably a  right  of  redemption,  independent  of  and  para- 
mount to  the  will  of  the  parties.  It  is  not  meant,  however, 
that  after  a  mortgage  has  been  once  created,  the  mortgagee 
may  not  become  the  purchaser  from  the  mortgagor  of  his 
equity  of  redemption.  He  may  become  such  purchaser,  thus 
combining  the  legal  and  equitable  estates,  and  his  purchase 
will  be  valid,  if,  under  the  jealous  scrutiny  of  a  court  of 
equity,  it  is  shown  to  be  for  an  adequate  consideration,  that 
no  undue  advantage  has  been  taken  of  the  necessities  of  the 
mortgagor,  and  that  it  is  in  all  respects  fair.  29  Gratt.  35. 
Principles  almost  as  stern  are  applied  as  those  which  govern 
where  a  sale  by  a  cestui  qui  trust  to  his  trustee  is  drawn  in 
question.  He  must  hold  out  no  delusive  hopes ;  every  doubt 
must  be  solved  against  him.  Villa  v.  Kodriquez.  12  Wall 
339 ;  30  L.  Ed.  406 ;  101  Va.  95. 

A  release  of  the  equity  of  redemption  will  not  be  inferred 
from  equivocal  circumstances  or  loose  expressions.  It  must 
appear  by  a  writing  importing  in  terms  a  transfer  of  the 
mortgagor's    interest,  or  such  facts    must  be  shown  as  will 


Legal    Aimiokisms.  1-15 

estop  him  afterwards  to  assert  any  interest.    See  1  Jones  on 
Mort.,  sec.  340;  101  Va.  92. 

Conrts  have  re-established  mortgages  in  behalf  of  pur- 
chasers and  others  entitled  to  redemption  which  have  been 
discbai'ged  of  record  in  ignorance  of  the  existence  of  judg- 
ment liens  acquired  subsequent  to  the  mortgage.  In  many 
cases  the  courts  will  keep  the  encunibrancc  alive,  or  consider 
it  extinguished,  as  will  best  secure  the  purposes  of  justice  and 
the  just  intentions  of  the  parties.  Indeed,  the  mortgage  will 
be  kept  on  foot,  if  necessarj^,  for  the  purposes  of  justice,  al- 
though the  interests  of  the  mortgagee  and  the  equity  of  re- 
demption unite  in  the  same  ]5erson.  It  has  been  very  properly 
said,  the  doctrine  of  subrogation,  at  Urst  applied  in  behalf  of 
those  who  were  bound  by  the  original  security  with  the  debtor 
has  been  greatly  eidarged  and  the  principles  modified  to  meet 
the  circumstances  of  cases  that  have  arisen  between  different 
classes  of  sureties  and  creditors,  so  as  to  do  substantial  justice 
and  equity  in  each  case.  (Citing  authorities.)  75  Va.  414; 
100  Va.  433. 

When  a  mortgage  is  made  to  secure  an  existing  debt  or 
obligation,  the  debt  or  obligation  intended  by  the  parties  to 
be  secni-ed  l)y  the  mortgage  may  be  identified  and  proved  by 
jiarol,  although  differing  materially  from  the  actual  descrip- 
tion thereof  in  the  mortgage  deed.  Melvin  v.  Fellows,  33  X. 
H.  401 ;  Bank  of  Utica  v.  Finch,  3  Barb.  Chy.  293 ;  Hall  v. 
Tay.  131  Mass.  194. 

Mortgage  of  after  acquired  property.  5  Va.  L.  Reg.  873. 

Foreclosure  and  sale  and  personal  decree  for  balance.  2 
Va.  L.  Reg.  370;  but,  see  93  Va.  274. 


146  Legal    Aphorisms. 

Mortgagor  and  Mortgagee. 

Under  what  circiinistances  and  how  the  first  or  the  second 
mortgagee  may  secure  to  himself  the  rents  of  the  mortgaged 
premises.  10  Gratt.  28.  The  interest  of  mortgagee  in  a  mort- 
gage of  real  estate  given  to  secure  a  debt  is  but  a  chattel  in- 
terest. 2  Vern.  ,294:;  77  Cali.  383;  Merwin  E.  &  Eq.  PI.  90, 
359 ;  5  K  H.  420 ;  50  K  J.  Eq.  547. 

Action  by  junior  against  senior  mortgagee,  who  makes 
way  with  the  mortgaged  property.  Stewart  v.  Long,  44  N.  E. 
63. 

Motions. 

Where  the  proceeding  is  not  according  to  the  course  of  the 
common  law,  but  under  a  statute  giving  a  summary  remedy, 
it  should  appear  by  the  record  of  the  judgment  that  the  case 
comes  within  the  statute,  and  that  the  course  prescribed  by 
the  statute  has  been  followed.   7  Rob.  Pr.  16. 

Pleadings  on  Trial  of  a  Motion. — In  the  case  of  Super- 
visors V.  Dunn,  27  Gratt.  608,  on  the  trial  of  a  motion  on  a 
sheriff's  bond,  the  defendants  tendered  the  pleas  of  nil  debet, 
payment,  non-dainnificatus  and  conditions  performed;  and, 
on  objection  by  the  plaintiffs  the  court  excluded  the  pleas  of 
nil  debet  and  non-damnificatus.  On  appeal,  p.  620,  the  court 
say:  It  is  somewhat  difficult  to  understand  what  was  the 
object  or  necessity  for  the  various  pleas  tendered  by  the  de- 
fendants. The  proceeding  was  a  mere  motion,  founded  upon 
a  notice,  upon  which  no  formal  pleadings  were  required.  It 
was  competent  for  the  defendants,  as  well  without  as  with  the 
pleas  offered  by  them,  to  make  every  defence  those  pleas  sug- 
gested.   And  in  the  case  of  State  Savings  Bank  v.  Baker,  03 


Legal    Aphorisms.  147 

Va.,  it  is  said  in  the  statemont  of  the  case  on  pagv  511  :  There 
does  not  appear  to  hav-e  been  any  pleadings  on  the  part  of  the 
defendants.  Xo  allusion  is  made  to  this  fact,  in  the  opinion 
of  the  court.  It  is  submitted,  nevertheless,  that  the  cautious 
practitioner  will  see  to  it  that  an  issue  to  be  tried  is  made  up 
and  shown  by  the  record.  And  this,  although  the  court  say  in 
the  case  of  Hall  v.  Ratliff,  J>.'5  Va.  p.  ;^28:  As  the  proceeding 
was  a  mere  motion,  formal  pleadings  were  not  requirt-d.  It 
was  competent  foi-  the  defendants,  as  well  without  as  with 
pleas,  to  make  any  proper  defence.  Board  of  Supervisors  v. 
Dunn,  kc.  -Il  Gratt.  608,  021;  Buuch,  Ex'or.  v.  Fluvanna 
County,  8-6  Va.  452  and  454;  4  Minor's  Inst.  (1st  Ed.)  1090. 
Aliter  when  jury  is  had,  V.  C.  3213. 

!N'ame. 
According  to  liyckman  v.  Shotbolt  Dyer,  279b ;  Field  v. 
Winslow  Cro.  Elis.  897 ;  Clark  v.  Istead,  1  Lutw.  894,  and 
Gould,  &c.  V.  Barnes,  3  Taunt.  504,  if  a  declaration  against  a 
defendant,  by  one  Christian  name,  as  for  instance  Joseph, 
state  that  he  executed  a  bond  by  the  name  of  Thomas,  and 
there  be  no  averment  to  explain  the  difference,  such  as  that 
he  was  known  by  the  latter  name  at  the  time  of  the  execution, 
such  a  declaration  would  be  bad  on  demurrer,  or  in  arrest  of 
judgment,  even  after  issue  joined  on  a  plea  of  non  est  factum, 
4  Rob.  Pr.  103.  In  describing  the  bond  it  should  be  stated  to 
have  been  made  by  W.  B.  ''by  the  name  of  W.  B.  &  Co.,  by 
which  name,  as  well  as  bv  the  name  of  W.  B.  the  said  defend- 
ant  is  called  and  known."  -  *  ^-  To  complain,  as  is  often 
done,  "of  W.  B.,  otherwise  called  W.  B.  &:  Co."  as  having 
executed  the  instrument,   without  otherwise  explaining  the 


148  Legal   Aphoeisms. 

discrepancy,  is  at  all  events  awkward,  and  is  said  to  be  an 
error  fatal  on  demnrrer  (because  a  party  cannot  in  law  have 
two  distinct  names  of  baptism),  and  not  less  fatal  upon  the 
plea  of  non  est  factum^  on  the  ground  of  variance,  -i  Minor 
692. 

Negligence. 

The  question  for  the  jury  always  is,  was  the  act,  taken  in 
connection  wuth  all  of  its  attending  circumstances,  negligent  ? 
93  Va.  198.  And  the  plaintiff  must  come  prepared  with  evi- 
dence to  show  that  the  intention  was  unlawful,  and  that  the 
defendant  was  in  fault ;  for  if  the  injury  was  unavoidable 
and  the  conduct  of  the  defendant  was  free  from  blame  he  will 
not  be  liable.    2  Greenl.  Ev.  sees.  85  to  92  ;  60  Mass.  295-6. 

As  a  rule,  negligence  is  not  presumed.  But  there  are  cases 
where  the  maxim  res  ipsa  loquitur  is  directly  applicable,  and 
from  the  thing  done  or  omitted  negligence  or  care  is  pre- 
sumed. 16  A.  &  E.  Ency.  of  Law  (1st  Ed.)  448.  When  the 
physical  facts  of  an  accident  themselves  create  a  reasonable 
probability  that  it  resulted  from  negligence,  the  physical 
facts  themselves  are  evidential^  and  furnish  what  the  law 
terms  evidence  of  negligence  in  conformity  with  the  maxim, 
res  ipsa  loquitur.    100  Va.  413. 

When  the  presumption  of  negligence  arises.  8  Va.  L. 
Eeg.  342 ;  100  Va.  409. 

Contracts  against  one's  own  negligence  in  matter  of 
purely  private  concern  are  valid.  5  Va.  L.  Reg.  560 ;  8  Idem. 
194. 

One  not  a  common  carrier  may  contract  against  negli- 
gence so  far  as  it  concerns  injury  to  proiDerty,  but  not  to  per- 
son.   175  U.  S.  91. 


Legal   Apkokisms.  149 

Several  instances  of  injury  giving  right  of  action  to 
parties  not  privies,  as,  for  instance,  selling  poison  by  mis- 
take to  one  person  which  is  taken  by  another.   41  S.  E.  190. 

Selling  one  medicine  for  another  medicine  to  the  injury 
of  a  third  person.  41  S.  E.  190;  14  Allen  295;  54  L.  R.  A. 
854;  56  Am..  Dec.  563.  Injury  from  runaway  horse  left  un- 
guarded. 84  Va.  313;  167  Mass.  549,  S.  C. ;  46  K  E.  57; 
14  Allen  297 ;  24  X.  E.  245 ;  57  L.  E.  A.  628 ;  58  Vt.  590, 
S.  C;  3  Atl.  484;  11  Am.  St.  R.  458;  105  Mass.  342;  and 
act  of  third  party  causing  fright  of  horse  does  not  prevent 
recovery.   Chase  on  Torts  34 ;  107  Mass.  104. 

Measure  of  damages  in  actions  for  personal  injuries  re- 
sulting from  negligence.  103  Va.  389;  R.  &  D.  R.  R.  Co.  v. 
Allison,  12  S.  E.  354;  57  S.  E.  505;  101  Va.  399;  Ins.  G. 
104  Va.  748 ;  In.  So.  R.  Co.  v.  Scott,  57  S.  E.  505.  The 
court  say:  In  R.  &  D.  R.  Co.  v.  Allison,  86  Ga.  145 ;  12  S.  E. 
352,  11  L.  R.  A.  43,  it  was  held  that  ''no  fixed  rule  exists  for 
estimating  the  amount  of  damages  from  permanent  injuries 
to  the  person.  The  amount  should  be  reasonable  and  just  to 
both  parties,  and  should  compensate  the  injured  one  for  the 
loss  of  money  which  he  would  probably  earn  had  not  the 
injuries  occurred.  While  it  is  proper  to  prove  the  age,  habits, 
health,  occupation,  expectation  of  life,  ability  to  labor,  and 
the  probable  increase  or  diminution  of  that  ability  with  lapse 
of  time,  the  rate  of  wages,  etc.,  and  then  leave  it  to  the  jury 
to  assess  the  damages,  it  is  iiupropor  to  allow  ])roof  of  a  par- 
ticular possibility,  or  even  i>robability,  of  any  increase  of 
wages  by  appointment  to  a  higher  public  office,  especially 
where  the  appointment  is  somewhat  controlled  by  political 
reasons. 


150  Legal    Aphokisms. 

Gross  negligence  is  the  omission  of  that  care  which  even 
the  most  inattentive  and  thoughtless  men  never  fail  to  take 
of  their  own  concerns.   33  Gratt.  390. 

Eolfe  B.  thinks  there  is  no  difference  between  negligence 
and  gross  negligence — that  it  is  the  same  thing  with  a  vitu- 
perative epithet.  11  M.  &  W.  115 ;  2  Eob.  Pr.  515.  It  may, 
says  Lord  Denman,  well  be  doubted  whether  between  gross 
negligence  and  negligence  merely  any  intelligible  distinction 
exists.   42  E.  C.  L.  S54;  2  Eob.  Pr.  535. 

Contributory  negligence  is  a  want  of  ordinary  care  upon 
the  part  of  a  person  injured  by  the  actionable  negligence  of 
another,  combining  and  concurring  with  that  negligence,  and 
contributing  to  the  injury  as  a  proximate  cause  thereof,  with- 
out which  the  injury  would  not  have  occurred.  7  A.  &  E. 
Ency.  L.  (new  Ed.)  371,  adopted,  8(3  Ala.  372;  18  Ore.  189 
and  38  W.  Va.  40;  Idem,  note  3. 

Though  there  may  have  been  negligence  on  the  part  of  the 
plaintiff,  yet  unless  he  might,  by  the  exercise  of  ordinary  care, 
have  avoided  the  consequences  of  the  defendant's  negligence, 
he  is  entitled  to  recover.    6  Gray  72  ;  H  Kob.  Pr.  1028. 

Instruction  upon  Burden  of  Proof-. — The  jury  are  in- 
structed that  the  burden  is  on  the  plaintiif  to  prove  the  negli- 
gence of  the  defendant  company  as  charged  in  the  declara- 
tion ;  and  that  if  the  defendant  relies  on  the  contributory 
negligence  of  the  plaintiff  as  a  defence,  the  burden  is  on  the 
defendant  to  prove  such  contributory  negligence,  unless  it  is 
disclosed  by  the  plaintiff's  evidence,  or  may  be  fairly  inferred 
from  all  the  circumstances  of  the  case ;  and  in  the  absence  of 
such  proofs  and  inferences  from  the  circumstances,  the  plain- 


LrxiAL    Ai'iiOKiSMS.  151 

tiff  is  presumed  to  have  been  without  fault.    102  Va.  507; 
S.  C.  40  S.  E.  77<',. 

Xegotiable  Paper. 

Effect  of  filling  blanks  in.  7  Va.  L.  Keg.  357,  642.  A 
note  is  payable  at  any  time  on  demand  on  the  last  day  of 
grace,  or  day  it  becomes  due.  Bnt  such  a  rule  may  be  modi- 
fied by  the  terms  of  the  note ;  and  making  a  note  payable  at 
bank  is  making  it  payable  within  usual  banking  hours,  and 
on  demand  and  refusal  of  payment,  by  the  maker  at  any  rea- 
sonable time  on  the  last  day  of  grace,  when  not  payable  at 
a  bank,  and  after  the  end  of  the  usual  banking  hours  of  the 
bank,  if  payable  at  a  bank,  the  note  is  due  and  payable,  and 
an  action  may  be  innnediately  commenced  against  the  maker, 
and  after  notice  of  its  dishonor  to  the  endorser  against  him. 
42  Mass.  51. 

One  losing  such  an  instrument  should  immediately  give 
notice  of  his  loss  to  the  public,  in  such  a  manner  as  is  most 
likely  to  prevent  innocent  parties  from  taking  it.  2  Rob.  Pr. 
507. 

New  Tkial. 

A  court  of  law  will  grant  a  new  trial,  if  a  judge  refuse 
evidence  which  ought  to  have  been  received  or  receive  evi- 
dence which  ought  to  have  been  rejected.    22  Gratt.  11>2. 

Where  the  chances  are  equal,  that  the  verdict  resulted 
from  the  etror  of  the  judge,  a  new  trial  will  be  granted.  27 
Gratt.  452. 

The  court  may  grant  a  new  trial  where  the  verdict  is  con- 
trary to  law  or  evidence,  l)Ut  the  duty  of  doing  so  is  not 
always  imperative.     There  are  various  considerations  which 


152  Legal   Aphoeisms. 

may  be  brought  to  bear  upon  its  discretion ;  such  as  the  doubt- 
ful character  of  the  question,  the  hard  or  unconscionable 
nature  of  the  action  or  defence,  the  belief  that  the  verdict 
conforms  to  the  substantial  justice  and  equity  of  the  case,  and 
others  that  might  be  mentioned.  It  is  the  constant  practice 
of  the  courts  to  sustain  verdicts  that  attain  substantial  jus- 
tice, though  not  strictly  warranted  by  the  evidence  or  strict 
adherence  to  legal  principles.  2  Gratt.  23 ;  22  Gratt.  569 ;  4 
Minor  927. 

Setting  aside  verdict  for  misconduct  of  jurors.  8  Va.  L. 
Keg.  383. 

A  venire  dc  novo  and  a  new  trial  are  very  different 
things ;  they  agree  in  some  things,  but  differ  in  many.  They 
agree  in  this — that  a  venire  de  novo  must  be  awarded  in  both 
cases,  and  that  the  court  may,  or  may  not,  grant  either  of 
them.  But  they  differ,  first,  in  this,  that  a  venire  facias  de 
novo  is  the  ancient  proceeding  of  the  common  law ;  a  new 
trial  is  only  a  new  invention,  introduced  on  account  of  the 
severity  of  the  judgment  in  attaint,  to  avoid  which  it  was 
thought  better  to  proceed  in  a  milder  way;  and  so  new  trials 
were  introduced.  They  likewise  differ  in  this  respect,  that 
new  trials  are  generally  granted  where  a  general  verdict  is 
, found;  a  venire  facias  de  novo  upon  a  special  verdict.  But 
the  most  material  difference  between  them  is  this:  That  a 
venire  facias  de  novo,  must  be  granted  upon  matter  apparent 
upon  the  record ;  Init  a  new  trial  may  be  granted  upon  things 
out  of  it,  if  the  record  be  ever  so  right ;  if  the  verdict  appear 
to  be  contrary  to  the  (law  or  the)  evidence  given  at  the  trial ; 
or  if  it  appear  that  the  judge  has  given  wrong  directions  (or 
has  admitted  or  excluded  evidence  improperly).     In  cither  of 


Legal    Ai'iiorisms.  153 

those  cases,  a  new  trial  will  be  granted;  hnt  it  is  otherwise  as 
to  a  venire  facias  dc  iioro.  which  can  only  he  granted  in  one 
or  the  other  of  these  eases:  First,  if  it  appear  u\)(m  the  face 
of  the  verdict,  that  the  verdict  is  so  imperfect,  that  no  judg- 
ment can  be  given  upon  it ;  second,  where  it  appears  that  the 
jury  ought  to  have  found  other  facts  differently.    2  H.  &  M. 

327. 

Nil  Debet. 

Where  the  deed  was  the  foundation  of  the  action,  although 
extrinsic  facts  are  mixed  with  it,  the  defendant,  if  he  deny 
his  execution  of  the  deed  set  forth  in  the  declaration,  should 
plead  non  est  factum,  and  nil  debet  was  not  a  sufficient  plew. 
(But  the  plaintiff  must  demur  to  the  plea  of  nil  debet,  and 
cannot  object  to  the  plea  after  verdict.  2  Va.  Dec.  590;  1 
Johns.  E.  509;  2  Johns.  R.  183;  8  Johns.  R.  83)  as  in  debt 
for  a  penalty  on  articles  of  agreement,  or  on  a  bail  bond,  or 
on  a  bond  setting  out  the  condition  and  breach.  And  if  in 
these  cases  7iil  debet  were  pleaded,  the  j)laintiff  ought  to  de- 
mur, for  if  he  did  not,  he  would  have  to  prove  every  allega- 
tion in  his  declaration,  and  the  defendant  would  be  at  liberty 
to  avail  himself  of  any  ground  of  defence  which  in  general 
might  be  taken  advantage  of  under  the  latter  plea.  1  Chitty 
PL  (7  Am.  Ed.)  518  ;  or  instead  of  demurring,  move  to  reject 
or  strike  out. 

The  plea  of  nil  debet  in  debt  for  rent  by  indenture,  stands 
on  peculiar  grounds,  and  is  an  exception  to  the  general  rule 
of  pleading,  where  the  plaintiff  counts  on  a  record  or  spe- 
cialty. We  have  already  seen  that  the  plea  is  not  allowed  in 
debt  on  a  bail  bond,  a  town  collector's  bond,  a  recognizance  of 
bail,  or  on  a  s])ecialty  for  luA  accepting  and  paying  for  stock 
according  to  contract.     2  Hill  235. 


154  Legal   Aphoeisms. 

Nor  is  it  allowed  on  bond  given  upon  the  issuing  of  a  for- 
eign attachment,    -i  Blackf.  R.  553.     In  this  case,  Dewey,  J., 
said:  "There  is  no  distinction,  as  to  the  validity  of  this  plea, 
between  a  single  bill,  and  a  bond  with  a  condition,  whatever 
may  be  the  character  of  the  condition.     When  the  deed  is  the 
foundation   of   the    action,  although   extrinsic    facts  may  be 
mixed  with  it,  nil  debet  is  not  a  sufficient  plea.     When  the 
specialty  is  but  inducement,  and  matter  of  fact  the  founda- 
tion of  the  action,  nil  dehet  is  a  good  plea.     It  is  upon  this 
princij)le  that  this  plea  is  allowable  to  debt  for  rent  reserved 
by  indenture  of  demise ;   the  lease  is  the  inducement,  and  the 
arrears  of  rent  the  gist  of  the  action.     It  is,  however,  observ- 
able that  the  usual  mode  of  declaring  practiced  in  these  cases, 
of  setting  out  a  demise  without    stating  it  to  be  under    seal 
(when  in  fact  it  is  so)  is  an  exception  to  the  general  rule  of 
pleading."    Id.   554.     The  general  doctrine  was  applied  in 
debt  on  a  bastardy  bond.    Id.  435.    x\nd  in  debt  on  a  sealed 
note.    3  Mo.  E.  70.   If  nil  dehet  is  not  demurred  to,  however, 
it  is  said  to  be  sufficient  to  put  the  plaintiff  to  proof  of  every 
material  allegation  in  the  declaration,  the  deed  included  (1 
Chilty  PI.  424,  Phila.  Ed.  1828,  citing  5  Esp.  R.  38;  2  Wils 
R.  10  and  2  Saund.  187a.  n.  2.)    See,  also,  2  Stark,  ev.  140, 
note  u  (3  Am.  Ed.)  ;  8  K  H.  R.  22,  28 ;  2  Phil.  Ev.  (7  Ed.) 
168;  1  Con.  R.  670,  1,  676.   But  see  2  Stark.  Ev.  270,  n.  (6 
Am.  Ed.),  which  is  thus:    It  seems  that  if  issue  be  taken  on 
the  improper  plea  of  nil  dehet  to  a  declaration  on  a  bond,  the 
execution  of  the  deed  stands    admitted.     On  such  an  issue 
taken  in  an  action  by  executors,  on  a  bond  to  the  testator,  evi- 
dence was  admitted  of  an  admission  of  the  amount  of  the  debt 
i»y  the  defendant,  and  the  plaintiffs  recovered  without  proof 


Legal   Aphorisms.  155 

(if  the  bond.  York  Sniiniier  Assizes.  Cor.  Bailey,  J.  Note 
of  the  reporter  to  the  case  of  Gates  v,  Wheeler,  2  Hill  on 
page  236. 

Where  plaintiff,  in  an  action  of  debt  on  a  bond,  instead 
of  demnrring,  replies  to  a  plea  of  nil  debet,  he  will  be  put 
upon  proof  of  every  allegation  in  his  declaration,  and  the 
defendant  may  avail  himself  of  any  ground  of  defence  which, 
in  general  might  be  taken  advantage  of  under  that  plea,  3 
Enc,  PI.  and  Pr.  p.  664;  4  Col,  53 ;  4  How,  146 ;  Bart,  L.  P, 
Hughes  V.  Kelley,  2  Va.  Dec.  590 ;  30  S,  E,  387, 

Proofs  That  May  Be  Made  Under  the  Plea  of  Nil  Debet. 
The  defendant  may  prove  at  the  trial  coverture  when  the 
promise  was  made,  lunacy  (Contra.  4  Cow.  207),  duress,  in- 
fancv,  release,  arbitrament,  accord  and  satisfaction  (contra 
3  Call  235:  2  Greenl.  Ev,  sec,  2!»),  payment,  taking  care  to 
file  an  account  so  as  to  give  plaintiff  notice  of  its  nature 
where  the  account  is  necessary,  90  Va.  775  (and  subject  lo 
the  qualification  that  without  filing  an  account  with  his  plea 
the  defendant  may  give  in  evidence  parol  admissions  of  the 
plaintiff  that  only  part  of  the  debt  is  due  and  no  specific  pay- 
ment is  relied  on,  8  Gratt.  557),  a  want  of  consideration  for 
the  ]tromises,  failure  (93  Va.  678),  but  see  5  Rob.  Pr.  577, 
note),  or  fraud  in  the  consideration,  a  former  judgment  for 
the  same  cause  of  action  (but  the  defence  is  not  then  conclu- 
sive, as  when  it  is  specially  pleaded  (4  Elinor  774;  7  Rob. 
Pr,  232-236)  illegality  in  the  contract,  as  gaming,  usury,  (Src, 
nr  that  the  contract  was  void  by  the  statute  of  parol  agi'ee- 
ments ;  and  in  short  anything  which  shows  that  there  is  no 
existing  debt  due.  (See  93  Va.  684.)  The  statute  of  limita- 
tion, bankrnptcy,  tc^nder    and   (a  cnstdm    <»r    usage    of    trade 


156  Legal   Aphorisms. 

where  it  will  excuse  non-performance  of  a  duty  prescribed  by 
law  (5  Gratt.  24),  and  a  warranty  (6  Gratt.  397)  are  believed 
to  be  the  only  defences  which  may  not  be  proved  under  this 
plea,  and  they  are  excepted  because  they  do  not  contest  that 
the  debt  is  owing,  but  insist  only  that  no  action  can  be  main- 
tained for  it.  4  Minor  770.  (Enclosures  in  brackets  have 
been  interpolated.) 

ISToMiNAL  Plaintiff. 

The  beneficial  owner  of  a  bill  of  exchange  or  negotiable 
note,  which  is  payable  to  bearer,  or  endorsed  in  blank,  may, 
says  Walworth,  Chan.,  institute  a  suit  thereon  in  a  court  of 
law,  in  the  name  of  any  one  who  is  willing  to  allow  his  name 
to  be  used  for  that  purpose ;   and  where  the  defendant  has  no 
legal  or  equitable  defence  to  the  bill  or  note,  as  against  the 
real  owner  thereof,  he  cannot  be  permitted  to  show  that  the 
nominal  plaintiff,  in  which  name  the  suit  is  brought,  is  not 
the  real  party  in  interest.    14  Wend.  580.   Decisions  on  simi- 
lar principles  have    been   made  in  Massachusetts.    (9  Mass. 
423)  and   Pennsylvania  (11  S.  &  R.  181,  2  Rob.  Pr.  229). 
The  legal  title  vesting  in  the  plaintiff,  it  is  no  ground  of  de- 
fence that  the  beneficial  interest  is  in  another,  or  that  the 
plaintiff,  when  he  recovers,  will  be  bound  to  account  for  the 
proceeds  to  another.    16  Pick.  382;  3  Rob.  Pr.  3.  And  it  is 
of  no  sort  of  consequence  to  the  maker,  whether  the  promisee 
shall  put  the  money  in  his  own  pocket  for  his  own  use,  or  pay 
it  over  honestly  to  him  to  whom  it  has  been  legally  or  equit- 
ably transferred.     That  is  a  consideration    with    which    the 
promiser  has  no  concern;   and  if  the  action  is  brought  for  the 
benefit  of  the  endorsee  and  Ixmn  fide  holder,  without  any  ob- 
jection on  the  part  of  the  payee,  it  furnishes  no  legal  or  equit- 


Legal    Atikjimsms.  157 

able  (lofenee  to  the  maker.  He  is  not  prejudiced.  He  may 
prove,  it"  he  can,  that  the  note  was  paid  before  it  was  en- 
dorsed, and  so  was  functus  officio.  He  has  all  the  rights  of 
set-otf  and  every  legal  and  equitable  defence  which  he  could 
have,  if  the  promiser  was  eventually  to  keep  the  money  for  his 
own  use.   19  Pick.  46. 

The  only  cases  in  which  a  third  person  has  the  exclusive 
riaht  to  the  control  of  an  action  at  law  are  where  he  has  ac- 
quired  the  whole  interest  of  the  nominal  plaintiff,  either  by 
his  voluntary  act,  or  by  operation  of  law.   131  Mass.  136. 

XoN  Assumpsit. 

Mr.  Minor,  Vol.  4,  p.  774,  says:  "The  fact  is  undeniable 
that  for  more  than  a  century  past,  there  have  been  admitted 
under  the  plea  of  non  assumpsit,  in  all  actions  of  assumpsit, 
whether  founded  on  an  implied  or  an  express  promise,  any 
matter  of  defence  whatever  (with  the  exceptions,  the  same  as 
in  the  case  of  nil  debet,  ante  p.  770  (to  which  exceptions  it  is 
suggested  should  be  added  "a  custom  or  usage  of  trade  where 
it  will  excuse  the  non-performance  of  a  duty  prescribed  by 
law  (5  Gratt.  24),  which  tends  to  deny  the  defendant's  lia- 
bility to  the  plaintiff's  demand.)  (Citing  authorities.)  Thus 
a  former  judgment  for  the  same  cause  of  action  may  be  given 
in  evidence  under  the  general  issues  of  nil  debet  and'  non 
assumpsit,  but  the  defence  is  not  then  conclusive,  as  it  is 
when  sjx'cially  pleaded.  (Citing  authorities.) 

Under  that  plea  the  defendant  might  give  in  evidence 
various  matters  of  defence,  although  they  admitted  that  a 
contract  had  in  fact  been  made,  but  denied  that  it  was  in  law 
obligatory  upon  the  defendant,  as  that  another  person  ought 
to  have  been  made  co-plaintiff  (76  Va.  169)  (or  as  stated  in 


158  Legal    Aphorisms. 

note  that  the  contract  was  made  with  one  of  the  plaintiffs 
above  (1  Esp.  E.  178),  or  that  it  was  not  made  by  all  the  de- 
fendants against  whom  the  action  is  bronght  (2  Johns.  R. 
213)  ;  also  the  defendant's  incapacity  to  contract;  as  that  at 
the  time  the  snpposed  contract  was  entered  into,  the  defendanr 
was  an  infant,  a  Innatic,  or  drnnk,  or  a  feme  covert.  Bnt 
coverture,  which  had  taken  place  since  the  making  of  the  con- 
tract always  must  have  been  pleaded  in  abatement.  So  under 
7wn  assumpsit  the  defendant  might  give  in  evidence  that  he 
was  under  duress ;  and  the  want  of  a  sufficient,  or  a  legal  con- 
sideration for  the  contract  (95  Va.  391;  91  Va.  445),  or 
illegalitv  in  the  contract  itself,  mie'ht  be  o-iven  in  evidence 
under  this  plea  (99  Va.  394)  as  gaming,  usury,  stock-jobbing 
act,  (fcc. ;  or  that  the  plaintiff  was  an  alien  enemy  at  the  tune 
the  contract  was  made ;  or  that  the  contract  was  void  by  the 
statute  against  frauds.  So  a  release  or  parol  discharge  before 
breach ;  or  an  alteration  in  the  terms  of  the  contract ;  or  non- 
performance by  the  plaintiff  of  a  condition  precedent ;  or  that 
the  debt  was  not  due  when  action  brought  (6  Ya.  L.  Reg. 
126;  see  Action  infra)  ;  or  that  the  contract  was  performed 
by  payment,  kc. ;  or  that  it  afterwards  became  illegal ;  or 
that  it  was  impossible  to  perform  it,  might,  when  they  consti- 
tuted a  sufficient  defence,  have  been  given  in  evidence  under 
this-  plea.  1  Chitty  PI.  (7  Am.  Ed.)  511.  He  may  show 
that  he  offered  to  perform  his  part  of  the  contract  and  was 
prevented  by  the  plaintiff  (13  Johns.  R.  56),  or  that  the  con- 
sideration was  different  from  that  stated  in  the  declaration, 
or  either  that  he  did  not  make  or  did  not  break  the  promise 
alleged,  or  that  the  contract  was  not  in  fact  made.  5  Rob.  Pr, 
255.   References  in  brackets  interpolated. 

Defence  of  action  prematurely  brought.     See  Action. 


Legal    Ai'uouis.ms.  150 

Non-Detinet. 

This  plea  applit-s  where  the  defeiidaiit  means  to  deuv  that 
he  detained  those  goods;  for  examph',  where  he  never  had 
possession  thereof  and  therefore  does  not  detain  them.  The 
word  "detain"  in  the  declaration  is  considered  to  mean  that 
the  defendant  withholds  the  goods  and  prevents  the  plaintiff 
from  having  the  possession  of  them.  The  detention  com- 
plained of  is  an  adverse  detention ;  and  such  detention  is 
denied  by  the  plea  of  noii  detinet.   6  Rob.  Pr.  589. 

Whenever  the  act  of  limitations  would  l)e  a  bar  to  an 
action  for  property,  it  gives  to  the  defendant  such  a  title  to 
the  pro|ierty  as  enables  him  to  maintain  his  defence  under 
the  general  issue,  and  would  even  enable  him  to  maintain  an 
action  for  the  propei-ty.     1  Rob.  Pr.  506 ;  16  Gratt.  240. 

N^ON  EST  Factum. 
It  is  abundantly  settled,  that  in  covenant  or  debt  the  plea 
of  noti  est  factum  puts  in  issue  the  giving  of  the  deed  only, 
and  that  it  is  not  necessary  in  such  a  case  for  the  plaintiff 
to  prove  the  averments  or  breaches  contained  in  his  df^clara- 
tion.  The  plea  admits  all  the  material  averments.  7  Wend. 
196. 

Proof  hy  Defendant  under  Nan  Est  Factum. — Under  the 
issue  of  non  est  factum,  the  defendant  may  prove  that  the 
deed  was  delivered,  and  still  remains  as  an  escrow,  or  he  mav 
take  advantage  of  any  material  variance  between  the  deed 
as  set  forth  by  the  plaintiff  and  the  deed  produced  at  the 
trial ;  or  may  give  any  evidence  showing  that  the  deed  either 
was  originally  void,  or  was  made  void  by  matter  subsequent 
to  its  execution,  and  before  the  time  of  pleading;   for  it  is  to 


ICO  Legal   Aphorisms. 

I 

the  time  of  pleading  that  the  averment  relates.     Thus,  the 
defendant   may    show   nnder   this   issue    that   the    deed  is  a 
forgery ;    that  it  was    obtained   by  fraud ;    or   was    executed 
while    he    was    insane,    or    so    intoxicated    as    not    to    know 
what  he  was  about ;    or  that  it  was  made  by  a  feme  covert ; 
or  to  her,  but    her  husband    disagreed   to   it ;    or  that  it  was 
delivered  to  a  stranger    for    the    use  of    the    plaintiff,    who 
refused    it ;    or   that  it  was   never   delivered    at    all.     Or  he 
may  show  that,  since  its  execution,  it  has  become  void  by 
beina'  materiallv  altered  or  cancelled  bv  tearino-  off  the  seal. 
But  matters  which  do  not  impeach  the  execution  of  the  deed, 
but  go  to  show  it  voidable  bv  common  law,  or  bv  statute,  such 
as  usury,  infancy,  duress,  gaming,  or  that  it  was  given  for 
ease  and  favor,  or  the  like  must  be  specially  pleaded.    76  Va. 
230.    And  here  it  may  be  observed,  that,  under  a  general  plea 
of  It  on  est  factum^  the  burden  of  proving  the  deed  lies  upon 
the  plaintiff;    but,  that  under  any  special  plea  of  matter  in 
avoidance  of  the  deed,  the  burden  of  proving  the  plea  lies 
upon  the  defendant.    Greenl.  Ev.,  part  IV.,  sec.  310;  see  4 
Minor  769. 

An  obligation  could  be  dissolved  at  common  law  only  by 
cancelling,  obliterating  or  surrendering  it,  or  by  some  equiva- 
1(  nt  act,  or  by  a  special  performance  of  the  condition,  or  by  a 
release,  and  the  statutes  have  given  no  additional  plea  but 
that  of  j>ayment,  to  be  proved  by  parol  evidence,  and  the 
special  plea  in  bar  in  the  nature  of  a  plea  of  set-off,  V.  C. 
3299.   1  Rob.  (old)  Pr.  20S. 

By  the  common  law,  deeds  of  conveyance,  or  other  deeds, 
made  contrary  to  the  provisions  of  a  general  statute,  or  for 
an  unlawful  consideration,  or  to  carry  into  effect  a  contract 


Legal   Aphorisms.  IGl 

unlawful  ill  itself,  or  in  consequence  of  any  prohibitory 
statute,  are  void  ah  inllio,  and  may  be  avoided  by  plea ;  or, 
on  the  general  issue  of  non  est  facium,  the  illegality  may  be 
given  in  evidence  to  show  that  the  writing  executed  by  the 
defendant  is  not  a  deed  by  any  h^gal  construction  or  effect. 
10  Mass.  274. 

Non  est  factum  can  be  pleaded  by  a  party  or  his  repre- 
sentative, but  not  by  a  stranger.   Stephens  PI.  198  and  note  o. 

The  uniform  conclusion  of  every  plea  of  non  est  factum  is 
to  the  country,  and  when  a  plea  concludes  to  the  country,  the 
plaintiff  can  never  reply  any  new  matter.  He  must  either 
accept,  by  a  similitvr,  the  issue  tendered  or  demur.  6  Eand. 
91. 

IS^ON-SuiT.   See  Eetraxit. 

Notice. 

To  Produce  Papers  in  the  Hands  of  the  Adverse  Party. — 
When  the  instrument  or  writing  is  in  the  hands  or  jx)wer  of 
the  adverse  party,  there  are  in  general,  except  in  cases  above 
mentioned,  no  means  at  law  of  compelling  him  to  produce  it ; 
but  the  practice  in  such  cases,  is,  to  give  him  or  his  attorney 
a  regular  notice  to  produce  the  original,  l^ot  on  proof  of 
such  notice,  he  is  compellable  to  give  evidence  against  him- 
self, but  to  lay  a  foundation  for  the  introduction  of  secondary 
evidence  of  the  contents  of  the  document  or  writing,  by  show- 
ing that  the  party  has  done  all  in  his  power  to  produce  the 
original.  1  Greenl.  Ev.  sec.  5G0.  He  must,  in  addition,  prove 
the  existence  of  the  original,  and  that  the  document  or  instru- 
ment is  in  the  possession,  or  under  the  control  of  the  party  re- 
quired to  produce  it.  But  of  this  fact  very  slight  evidence  will 


162  Legal   Aphoeisms. 

raise  a  snflficieiit  presumption,  where  the  instrument  exclu- 
sively belongs  to  him,  or  has  recently  been,  or  regularly  ought 
to  be,  in  his  possession,  according  to  the  course  of  business. 
And,  after  notice  and  refusal  to  produce  a  paper,  and  second- 
ary evidence  given  of  its  contents,  the  adverse  party  cannot 
afterwards  produce  the  document  as  his  owm  evidence. 

When  Party  to  a  Contract  Entitled  to  Notice  Before 
Bringing  Action. — Where  a  party  stipulates  to  do  a  certain 
thing  in  a  certain  specific  event  which  may  become  known  to 
him,  or  with  which  he  can  make  himself  acquainted,  he  is  not 
entitled  to  any  notice,  unless  he  stipulates  for  it ;  but  w^hen  it 
is  to  do  a  thing  which  lies  wnthin  the  peculiar  knowledge  of 
the  opposite  party,  then  notice  ought  to  be  given.  Lord 
Abinger,  6  M.  &  W.  452,  453  ;  6  :Mete.  426.  See,  also,  3  Rob. 
Pr.  598,  et  seq. 

After  failure  or  refusal  to  produce,  after  notice,  the  party 
may  give  secondary  or  parol  proof  of  the  contents  of  such 
books  or  papers,  if  they  be  shown  or  admitted  to  be  in  the 
possession  of  the  opposite  party ;  and  if  such  secondary  evi- 
dence is  imperfect,  vague,  and  uncertain  as  to  dates,  sums, 
boundaries,  &c.,  every  intendment  and  presumption  shall  be 
against  the  party,  who  might  remove  all  doubt  by  producing 
the  higher  evidence.  But  they  must  be  shown  to  be  in  his 
possession,  and  some  general  evidence  of  such  parts  of  their 
contents  as  are  applicable  to  the  case  must  iirst  be  given,  be- 
fore any  foundation  is  laid  for  any  inference  or  intendment 
on  account  of  their  non-production.  18  Johns.  R.  331;  4 
Burr  2,  484 ;  7  Wend.  34. 


Legal   Aphokisms.  1G3 

Nunc  Pro  Tunc. 

When  oi-dcr  nunc  pro  liinc  \y\]]  ])v  oiitorod  aiul  its  effect. 
100  Va.  4r>(\. 

Form  of  Order. — To  be  entered  nunc  pro  tunc  as  an  aet 
of  the  last  term,  and  to  have  the  same  effect  as  if  it  had  been 
then  entered  before  the  hearing  (100  Va.  839)  ;  this  in  allow- 
ing the  filing  of  a  replication. 

Obeter  Dictum. 
It  is  obvious  that  the  remarks  of  the  judges  as  to  *  *  *  , 
if  not  obiter,  were  merely  incidental,  and  had  no  bearing 
upon  the  decision  of  the  case.  In  determining  the  weight  to 
be  attached  to  such  observations,  it  would  be  well  to  bear  in 
mind  the  remarks  of  Chief  Justice  Marshall,  in  that  connec- 
tion in  Marburg  v.  Madison,  1  Cr.  127  and  17-1:  It  is  a 
maxim  not  to  be  disregarded  that  general  expressions  in  every 
0})inion  are  to  be  taken  in  connection  with  the  case  in  which 
those  expressions  are  used.  If  they  go  beyond  the  case,  they 
may  be  respected,  but  ought  not  to  control  the  judgment  in  a 
subsequent  suit,  when  the  very  point  is  presented.  The  rea- 
son of  this  maxim  is  obvious.  The  question  actually  before 
the  court  is  investigated  with  care,  and  considered  in  its  full 
extent.  Other  principles  which  may  serve  to  illustrate  it  are 
considered  in  their  relation  to  the  case  decided,  but  their  pos- 
sible bearing  on  all  other  cases  is  seldom  completely  investi- 
gated.    100  Va.  477. 

Officer. 

Dc  Facto  and  a  Mere  Usurper. — The  distinction  between 
an  officer  dc  jure,  one    who    is    de    facto    such,  and  a  mere 


164  Legal   Aphorisms. 

usurper,  is  well  known,  and  clearly  settled;  and  these  dis- 
tinctions are  important  to  be  borne  in  mind.  An  officer  de 
jure  has  the  legal  title  to,  and  is  clothed  with  all  the  power 
and  authority  of,  the  office.  He  has  a  title  against  the  world 
to  exercise  the  functions  of  the  office,  and  to  receive  the  fees 
and  emoluments  appertaining  to  it.  He  is  responsible  to  the 
government  and  injured  parties,  when  he  abuses  his  trusts  or 
transcends  his  authority.  But  his  acts,  within  the  scope  of 
ihat  authority,  cannot  be  questioned  by  the  citizen  or  any  de- 
partment of  the  government.  Black  Tax  Titles ;  14  Vt.  R. 
428.  An  officer  dc  facto  is  one  who  comes  in  by  the  power  of 
an  election  or  appointment,  but  in  consequence  of  some  in- 
formality or  omission,  or  want  of  qualification,  or  by  reason 
of  the  expiration  of  his  term  of  service,  cannot  maintain  his 
position  when  called  upon  by  the  government  to  show  by  what 
title  he  claims  to  hold  his  office.  He  is  one  who  exercises  the 
duties  of  an  office  under  claim  or  color  of  title,  being  distin- 
guished, on  the  one  hand,  from  a  mere  usurper,  and  on  the 
other  from  an  officer  de  jure.  lb. ;  5  E.  C.  L.  R.  278 ;  5 
Wend.  234.  A  mere  usurper  is  one  who  intrudes  himself  into 
an  office  which  is  vacant,  or  ousts  the  incumbent  without  any 
color  of  title  whatever.  Black  Tay.  Titles  93;  7  X.  H.  140; 
20  Gratt.  42-3. 

It  cannot  be  assumed  that  an  officer  has  been  guilty  of 
improj)er  conduct  in  the  discharge  of  a  duty  incident  to  his 
office,  though  such  a  fact  may  be  shown  by  proof  when  put 
in  issue.    101  Va.  57. 

The  presumption  of  law  is,  until  the  contrary  is  proved, 
that  the  officer  has  performed  his  duty.    97  Va.  678. 

Order.    See  Assignments. 


Legal   Aphorisms.  165 

The  drawee,  thongb  he  is  the  drawer's  debtor,  is  not  bound 
to  accept  his  draft  against  his  own  will.  The  creditor  has  no 
right  to  compel  his  debtor  to  become  debtor  to  another  man. 
(Onr  statute  authorizes  this  only  in  the  case  of  assignment 
of  assignable  securities.)  The  drawee  may,  therefore,  refuse 
to  accept ;  and  in  that  case,  lie  is  not  liable  to  the  payee  at  all. 
*  *  And  if  acceptance  of  the  order  be  refused,  three  courses 
remain  for  the  holder — he  may  either  return  it,  in  which  case 
the  parties  are  in  data  quo;  or  he  may  sue  the  drawer  upon 
it,  the  drawee  having  refused  to  accept  it ;  or  he  may  retain 
it,  give  notice  to  the  person  on  whom  it  is  drawn,  not  to  part 
with  the  fund,  and  sue  in  equity  for  its  recovery.  6  Leigh 
534.  The  same  doctrine  is  held  in  the  First  National  Bank 
kc.  V.  Kimberlands,  16  W.  Va.  555,  where  it  is  said:  When  a 
person  having  a  demand  due  him  assigns  part  of  it  to  differ- 
ent persons,  whether  by  separate  orders  in  their  favor  or 
otherwise,  they  are  valid,  equitable  assignments  pro  ianto, 
and  though,  if  the  orders  are  not  accepted  a  court  of  law  will 
in  no  manner  recognize  these  partial  assignments  or  orders  as 
equitable  assignments,  yet  a  court  of  equity  in  a  suit  in  chan- 
cery will  recognize  and  enforce  them.  See,  also,  2  Story's 
Eq.,  sec.  104:3,  et  seq. ;  SO  Va.  832 ;  4U  W.  Va.  432,  S.  C. ; 
38  S.  E.  53S. 

Ordinances. 
City  Ordinances  as  Evidence,  and  How  Verified. — The 
clerk  of  a  city  or  town  is  the  proper  certifying  officer  of  all 
notes,  ordinances,  or  by-laws  of  such  city  ov  town;  and 
copies  thereof  duly  attested  hy  the  clerk  are  competent  evi- 
dence to  go  to  the  jury,  without  any  special  v<>riiication  of  the 


166  Legal    Aphorisms. 

genuineness  of  the  signature,  such  as  would  be  required  in 
proof  of  ordinary  instruments,  when  notice  had  been  g-iven 
requiring  such  proof.  Of  course,  copies  so  authenticated  are 
prima  facie  evidence  only,  which  may  be  controlled  by  any 
circumstances  tending  to  show  a  forgerv.     60  Mass.  249. 

Paeent  and  Child. 

It  is  a  well  settled  principle  of  law,  governing  the  relation 
of  parent  and  child,  that  a  father,  if  of  ability,  is  bound  to 
maintain  his  infant  children,  even  though  they  may  have 
property  of  their  own.  Evans  v.  Pearce,  15  Gratt.  515.  And 
the  mother  after  the  death  of  the  father,  if  of  sufficient 
ability,     16  Mass.  110. 

Parent's  liability  for  necessaries  furnished  his  minor 
child.    6  Va.  L.  Eeg.  585;  47  Atl.  887. 

Parties. 
Defence  of  the  action  having   been   brought    against  the 
wrong  party  may  be  made  under  the  general  issue.     27  Gratt. 
256. 

Proceeding  by  rule  against  the  plaintiff  to  show  cause 
why  they  should  not  make  new  parties.  13  Gratt.  38  ;  3  Leigh 
599. 

Partnership. 
■  A  creditor  accepting  a  new  firm  as  his  debtor,  does  not 
release  old  firm,  unless  it  clearly  appears  that  the  creditor  has 
accepted  the  substituted  credit  of  a  new  partnership  instead 
of  the  liability  of  the  old  firm  and  not  merely  as  a  continuing 
or  additional  security.  1  Chitty  PI.  (7  Am.  Ed.)  55;  17 
Johns.  Pt.  340. 


Legal   Aphorisms.  107 

When  action  by  one  partner  against  the  other  for  deceit 
may  be  maintained.    54  S.  E.  351. 

Instrnments  in  tirm  name  under  seal.   8  Va.  L.  Reg.  786. 

Partnership — Pleading,     4  Va.  L.  Keg.  545. 

Are  partners  liable  jointly  or  jointly  and  severally  in  Vir- 
ginia ?  In  the  absence  of  a  statute  to  the  contrary  their  lia- 
bility is  merely  joint.  18  Johns.  R.  459  ;  1  Wend.  524 ;  4  Va, 
L,  Reg.  546,  citing  21  Fla.  128;  10  Pick.  281;  24  S,  E, 
(Fla,)  59.  See,  also,  50  W.  Va.  514;  40  S.  E,  376.  In  the 
case  of  Sands  v.  Durham,  98  Va.  on  page  397,  the  court  say: 
''Counsel  for  appellee  contends  that  the  rule  is  changed  by 
the  statute  (see  2855,  passed  in  18'49),  whereby  partnership 
debts  are  now  joint  and  several;  and,  also,  cites  Morris  v, 
Morris,  4  Gratt.  293,  in  support  of  the  further  contention,  &:c. 
Is  this,  then,  the  opinion  of  the  court  or  the  statement  of  the 
opinion  of  counsel  merely  ?  The  wording  of  the  statute  does 
not  appear  to  justify  the  construction,  and  Mr,  Robinson,  one 
of  the  revisors  of  the  Code  of  1849  (3  Rob.  Pr.  108,  says  that 
it  was  suggested  for  another  purpose)  and  Mr.  Mintir  says : 
"The  rules  of  law  are  not  o-enerallv  subject  to  be  altered  by 
statutory  provisions  introduced  for  a  different  object."  2 
Minor  124. 

It  has  been  held  in  the  case  of  Ward  v,  Motter,  2  Rob.  R. 
536-552,  that  the  liability  was  joint,  the  court  saying:  In  the 
case  of  ostensible  })artners,  if  the  simple  contract,  instead  of 
being  joint  only  (as  it  is  at  law,  though  not  in  equity,  Story 
on  Partn.,  p.  514,  sec.  362)  were  several,  t^'c.  In  1857  the 
Court  of  Apix-als  in  the  case  of  ^IcArthur  v.  Chase,  13  Gratt. 
701,  say:  In  the  case  of  an  ordinary  partnership,  a  creditor 
is  required  to  sue  all  the  nu^mbers  of  the  tirm  in  respect  to 


168  Legal   Aphoeisms. 

any  claim  against  the  concern.  And  the  case  of  Prunty  v. 
Mitchell  &  Cobbs,  76  Va.  169,  is  to  the  same  effect;  both  of 
which  cases  must  have  been  decided  upon  the  theory  that  the 
liability  was  joint,  and  not  joint  and  several,  and  in  neither 
case  is  any  mention  made  of  section  2855  as  having  any  bear- 
ing on  the  question.  In  the  light  of  these  facts,  I  am  per- 
suaded that  the  court  in  the  case  of  Sands  v.  Durham,  was 
only  stating  the  opinion  of  counsel,  and  that  whatever  may 
be  the  law  elsewhere,  in  Virginia  partners  are  only  jointly 
liable  for  the  debts  of  the  concern,  and  must  all  be  joined  in 
an  action  for  a  firm  debt.   18  Johns.  E.  159  ;  1  Wend.  524. 

Form  of  declaration  in  action  against  surviving  partner. 
33  Gratt.  313. 

Pawns.    See  Pledges. 

Payment. 

When  the  plaintiff's  own  book  appears  to  be  crossed,  it  is 
evidence  of  payment  of  an  account.  2  P.  Wms.  126 ;  1  Mad- 
dox  Chy.  61. 

May  be  proved  by  oral  testimony,  though  a  receipt  be 
taken.  1  Greenl.  Ev.  sec.  90.  If  a  witness  speaks  positively 
as  to  the  date  and  amount  of  a  payment,  and  the  jury  believe 
him,  such  evidence  cannot  be  considered  inferior  to  the  re- 
ceipt. In  one  aspect  it  is  superior.  For  the  receipt,  when 
produced,  is  but  prima  facie  acknowledgment  that  the  money 
has  been  paid;  and  the  circumstances  under  which  it  was 
obtained  may  be  proved  by  a  witness  who  was  present  at  the 
time  of  giving  it.  It  may  be  proved  that  the  receipt  was 
fraudulently  obtained;  and  then  the  receipt  will  amount  to 
nothing,  and  the  cause  will  rest  on  the  parol  evidence.  Skaife 
V.  Jackson,  3  E.  &  0.  421  ;  10  E.  C.  L.  137 ;  1  Rob.  (old)  Pr. 


Legal    Apjioeisms.  109 

305.  When  a  receipt  is  giveu  for  a  iDaymcnt,  the  general 
opinion  is  that  the  payment  may  be  proved  as  well  by  parol 
evidence  of  the  fact  as  by  the  production  and  proof  of  the 
receipt,  though  the  case  of  Hamlin's  Adm'r  v.  Atkinson,  6 
Eaud.  574,  has  thrown  some  doubt  on  that  question  in  this 
State.  7  Gratt.  393.  The  receipt  of  T.,  although  in  its  terms 
an  absolute  acknowledgment  of  the  papnent  of  four  hundred 
dollars  in  the  hands  of  the  appellant,  as  trustee,  is  merely 
prima  facie  evidence  of  the  fact,  and  not  conclusive;  and 
therefore,  the  fact  which  it  recites  may  be  not  only  explained 
or  varied,  but  contradicted  by  oral  testimony.  This  is  well 
settled  law.  1  Greenl.  on  Ev.  sec.  305;  The  Delaware,  14 
Wall  GOl ;  2d  Gratt.  759. 

Bv  Eemittance  Through  Mail,  see  Eemittance. 

By  check  stating  on  its  face  that  it  is  in  full  of  balance  of 
account.  41  X.  E.  6 ;  25  S.  E.  70S ;  56  Am.  St.  E.656 ;  29  S. 
E.  943;36S.  E.  36. 

With  check  of  third  party  which  turns  out  to  be  worthless. 
It  operates  as  a  conditional  payment  only  of  the  original  debt. 
In  such  a  case,  if  the  check  or  draft  is  presented  for  payment 
within  a  reasonable  time,  and  the  bank  or  banker  fails,  the 
loss  does  not  fall  upon  the  holder,  unless  he  has  agreed  to  bear 
the  risks,  but  he  may  return  it  to  the  party  from  whom  he  has 
received  it,  and  maintain  suit  upon  his  original  cause  of 
action.  A  fortiori,  this  is  true,  where  the  draft  was  worthless 
when  received.  Weddingen  v.  Boston,  &c.  Co.  100  Mass.  122; 
Fleig  V.  Sleet,  1  N.  E.  24. 

Upon  familiar  principles,  if  a  note  is  taken  as  a  condi- 
tional payment,  or  in  renewal,  and  is  nut  duly  paid  or  dis- 
charged, the  original  debt  revives;    and  this  principle  aj)plies 


170  Legal    Aphorisms. 

to  every  renewal,  which  is  but  a  continuation  of  the  same 
debt.  ISTor  is  it  material  whether  the  note  or  bill  be  given  for 
a  precedent  or  co-temporary  debt ;  in  neither  instance  will  it 
operate  as  an  extinguishment  or  payment,  unless  it  be  so 
accepted  by  the  creditor.  If  not  paid  at  maturity,  the  credi- 
tor may  sue  upon  it,  or  upon  the  original  cause  of  action.  21 
Gratt.  567-8 ;  see,'  also,  75  Va.  726. 

Proof  of  the  insolvency  of  a  debtor  is  no  more  competent 
to  show  non-payment,  than  proof  of  his  solvency  is  competent 
to  show  the  payment  of  his  debts.  These  two  kinds  of  proof 
stand  on  the  same  footing.  The  latter  kind  has  been  held  to 
be  incompetent.  Hilton  v,  Scarborough,  5  Gray  422 ;  First 
Nat.  Bank  of  Zenia  v.  Stewart,  114  U.  S.  231;  29  Law.  Ed. 
104;  18  A.  &  E.  Ency.  of  Law  (1  Ed.)  204  note.  But  it 
seems  that  the  common  law  presumption  of  payment  may  be 
repelled  by  evidence  of  the  debtor'^  inability  to  pay  during 
the  i>eriod.   78  Va.  136;  2  Minor  838;  1  Rob.  Pr.  402. 

Payment  on  Account  as  an  Admission. — In  Rowe  v. 
Hardy,  97  Va.  on  page  681,  the  court  say:  The  debtor  died  in 
May,  18*85,  and  only  a  few  months  before  his  death  made  two 
payments  on  account  of  the  judgment,  to-wit:  The  sum  of 
$265  on  January  9,  1885,  and  $100  on  March  7,  1885,  which 
was  an  admission  on  his  part  that  up  to  that  time  the  judg- 
ment had  not  been  satisfied.  Updike's  Adm'r  v.  Lane,  78  Va. 
132 ;  and  Coles'  Adm'r  v.  Ballard,  78  Va.  139. 

The  defendant  paid  money  into  court,  under  a  rule,  and 
did  not  distinguish  as  to  which  of  the  counts  the  payment  was 
applicable.  And  this,  by  the  authorities,  is  an  admission  of 
the  contract  as  set  forth  in  the  declaration.     It  is,  however, 


Li:(iAi.    Aphorisms.  171 

within  the  discrotiun  of  the  court  to  aj)])l,v  this  rule  or  not,  as 
equity  shall  require.     .5  Pick.  2()(). 

Peksokal  IvKi'KESENTATivK.  See  Executors  or  Adminis- 
trators. 

Pleading. 

Pk^ading-  is  the  formal  mode  of  alleging  that  on  the  record 
which  would  be  the  support  or  defence  of  the  party  on  evi- 
dence.    3  T.  E.  159 ;  3  Eob.  Pr.  484. 

The  use  of  pleading  is,  on  the  one  hand,  to  set  forth  and 
state,  with  precision,  the  fact  or  facts  which  in  law^  show  the 
justness  of  the  plaintiff's  demand  ;  and,  on  the  other  hand,  the 
discharge  or  defence  made  bv  the  defendant  in  bar  of  the 
plaintiff's  action ;  and,  on  the  trial  the  evidence  ought  to 
ap2)ly  directly  to  the  matter  in  issue  between  the  parties,  to 
prevent  surprise  on  either  side.  Fleming,  Jr.,  2  Munf.  347 ; 
3  Eob.  Pr.  510. 

In  i)leading  it  is  enough  to  state  the  facts  from  which  a 
right  or  duty  arises.   4  Eob.  Pr.  C19. 

Xo  allegations  are  material  which  will  not  prevent  a 
plaintiff  from  recovering  if  proved  to  be  untrue;  or,  which, 
when  denied,  he  is  obliged  to  prove  to  entitle  himself  to  a  ver- 
dict.    3  Ducr.  1()5. 

The  pleader  is  not  at  liberty  to  leave  a  niatter  in  doubt, 
and  then  ask  the  court  to  presume  in  his  favor ;  especially 
where  the  probaility  is  against  the  existence  of  the  fact  which 
he  wishes  to  have  presumed.   G  Hill  475  ;  3  Eob.  Pr.  502. 

It  is  a  maxim  in  pleading,  that  everything  shall  be  taken 
most  strongly  against  the  party  pleading  (98  Va.  25),  or, 
rather,  that  if  the  meaning  of  the  words  be  equivocal,  and  two 
meanings    present    themselves,    that    construction    shall    be 


172  Legal    Aphorisms. 

adopted  which  is  the  most  unfavorable  to  the  party  pleading ; 
because  it  is  to  be  presumed  that  every  person  states  his  case 
as  favorably  to  himself  as  possible.  But  in  applying  this 
maxim,  the  other  rules  must  be  kept  in  view,  and  particularly 
those  relating  to  the  degree  of  certainty  or  precision  required 
in  pleading.  The  maxim  must  be  received  with  this  qualifi- 
cation, that  the  language  of  the  pleading  is  to  have  a  reason- 
able intendment  and  construction;  and  where  an  expression 
is  capable  of  diiferent  meanings,  that  shall  be  taken  which  will 
support  the  declaration,  &c.,  and  not  the  other,  which  would 
defeat  it.    ('103  Va.  714.)    1  Chitty  PI.  7  Am.  Ed.  272. 

The  declaration  should  not  present  for  the  determination 
of  the  jury  what  is  matter  of  law.  Lope  v.  Becker,  1  Denio. 
570;  or  partly  matter  of  law  and  partly  matter  of  fact.  For 
example,  it  should  not  state  that  a  party  was  duly  appointed 
administrator.  Beach  v.  Kinof,  17  Wend.  198 ;  or  was  dulv 
ap|)ointed  receiver:  but  it  should  state  what  in  particular 
was  done ;  so  that  if  the  fact  be  admitted,  the  court  can  deter- 
mine whether  he  was  duly  appointed ;  or  if  issue  be  joined  on 
the  allegation,  the  jury  can  answer  as  to  its  truth.  Gillett  v. 
Fairchild,  4  Denio.  83;  3  Rob.  Pr.  530.  (See  100  Va.  43C.) 
So  the  words  "duly,"  "lawfully,"  "sufiicient,"  &c.,  without 
showing  the  matter  of  fact  with  convenient  certainty,  are  sel- 
dom of  avail  in  pleading.  1  Chitty  PI.  (7  Am.  Ed.)  271. 
And  therefore  it  seems  that  a  general  averment  that  "the  de- 
fendant did  not  perform  his  agreement"  is  insufficient ;  be- 
cause "did  not  perform  his  agreement"  might  involve  a  ques- 
tion of  law,  and  also  because  the  object  of  pleading  is  to  ap- 
jjrize  the  defendant  of  the  cause  of  coni])laiiit,  so  that  be  may 
prepare  his  plea  and  defence  and  evidence  in  answer.  Idem. 
3C5. 


Legal   Apiiokisms.  173 

Tliero  are  faults  in  jjlcadiuii",  bad  rm  doiiiurror,  which 
may  hv  waived  by  the  adverse  -  party  pleading  over.  Where 
the  plaintiff  in  his  replication  makes  a  title  and  it  thereby 
appears  that  he  has  a  bad  title,  no  rejoinder  can  by  any  impli- 
cation make  it  good.  But  when  it  appears  that  he  has  a  title, 
but  is  defectively  pleaded,  the  rejoinder  admitting  this  mat- 
ter, and'  tendering  an  issue  on  other  matters,  will  make  the 
rei>lication  good.  5  Mass.  132.  Other  instances:  10  Mass. 
226;  14  Mass.  157. 

In  an  action  to  recover  a  debt,  the  failure  of  the  defendant 
to  jjay  at  or  before  maturity  is  an  essential  part  of  the  plain- 
tiif's  cause  of  action.  He  must  allege  and  prove  the  defend- 
ant's default  in  this  particular.  5  Va.  L.  Reg.  410;  12  W. 
Va.  510. 

Pleadings  are  alwavs  evidence  of  the  law.  Buller,  J.  8  T. 
R.  161.  And.  books  of  entries  are  the  best  authorities  in  tke 
absence  of  decided  cases.  Ashhurst,  J.,  2  T.  R.  10.  82  Mass. 
238. 

Px,EAS  IX  Bar. 
The  defendant  must  never  plead  in  bar,  matter  which 
goes  only  in  abatement.  This  is  an  error  of  substance,  and 
fatal  u}wn  a  general  demurrer.  And  though  the  plaintiff 
should  reply  instead  of  demurring  to  the  plea,  yet  if  the 
pleadings  terminate  in  a  general  demurrer,  and  it  appears 
that  matter  going  only  in  abatement  is  pleaded  in  bar,  judg- 
ment will  be  given  against  the  defendant  for  that  cause  only. 
The  reason  is,  that  every  plea  in  bar  necessarily  admits  that 
the  suit  is  well  brought,  and  this  being  admitted,  there  is  no 
matter  of  defence  contained  in  the  plea.  1  Leigh  04 ;  1  Rob. 
(old)  Pr.  164. 


174  Legal   Aphokisms. 

Every  plea  in  bar  to  be  a  good  defence  to  the  action  must 
aver  with  sufficient  certainty  such  facts  as  amount  to  a  le^al 
bar.  The  facts  must  be  set  out  with  such  particularity  in  the 
plea  as  to  inform  the  plaintiff  of  the  nature  of  the  defence 
intended  to  be  relied  on,  and  thus  to  enable  him  to  reply  to  it, 
to  make  up  the  issue  thereon,  and  prepare  for  trial.  27  Gratt. 
752. 

When  the  plea  of  the  defendant  is  so  defective  as  not  to 
be  a  bar  to  the  jilaintiff's  demand,  the  plaintiff'  should  demur 
to  it.  If  instead  of  demurring-  to  the  plea,  he  shall  take  issue 
on  it  in  fact,  he  cannot  at  the  trial  object  to  any  evidence 
which  supports  the  plea  on  which  he  has  thus  joined  issue. 
But  after  the  issue  is  found  for  the  defendant,  it  is  compe- 
tent to  the  plaintiff  to  move  for  a  repleader.  2  Rand.  40 ;  1 
Rob.  (old)  Pr.  222.  Though  judgment  be  given  for  the  de- 
fendant in  the  court  below  without  any  motion  for  a  re- 
pleader, yet  if  an  appellate  court  shall  be  of  opinion  that  the 
verdict  found  for  the  defendant  was  upon  an  issue  joined  on 
a  plea  which  afforded  no  bar  to  the  plaintiff's  action,  and 
which  issue  was  therefore  immaterial,  the  appellate  court  will 
set  aside  the  plea  and  all  subsequent  proceedings.  1  Rob. 
(old)  Pr.  222. 

Our  courts  are  liberal  in  allowino-  defendants  to  add  to 
their  pleas,  when  justice  requires  it,  and  the  plaintiff  is  not 
thereby  subjected  to  delay ;  and  will  do  so  even  though  he  be 
subjected  to  delay,  if  good  cause  be  shown  for  not  having 
made  the  a/ldition  earlier.  1  Rob.  (old)  Pr.  231;  IG  Gratt. 
440. 

Plea  of  Payment. 

It  is  an  old  and  Avell  settled  rule,  that  although  a  plea  of 
payment  before  tlie  day  is  not  good;    yet  a  plea  of  payment 


Legal    Aimiorisms.  175 

at  th(^  day  is  supported  by  proof  of  payment  before  the  day. 
Holmes  V.  Brocket,  Cro.  Jac.  434;  Sturdy  v.  Armand,  :>  T. 
E.  601;  19  Pick.  1-2:].  In  Sturdy  v.  Armand,  Buller,  J., 
says:  There  is  indeed  an  old  case  which  said  that  payment 
before  the  day  would  not  discharge  the  bond.  But  in  the  first 
place,  that  case  has  been  frequently  overruled  ;  and  if  it  were 
still  law,  it  would  not  govern  this  case;  because  it  has  been 
held  that  the  obligor  may  plead  it  as  payment  at  the  day,  and 
this  would  be  evidence  of  such  payment. 

The  plea  of  payment  is  a  plea  in  confession  and  avoid- 
ance. It  confesses  the  original  cause  of  action,  as  charged  in 
the  declaration,  and  relies  on  affirmative  matter  in  avoidance. 
It  concludes  with  a  verification  and  prayer  of  judgment.  The 
plaintiff  replies  generally,  putting  himself  on  the  country, 
and  the  defendant  adds  the  similiter.  It  puts  the  onus  pro- 
handi  upon  the  defendant  and  gives  him  the  right  to  open  and 
conclude.  31  Gratt.  317.  But  it  had  been  said  previously  in 
Henderson  v.  Southall,  4  Call  371,  where  the  question  was, 
whether  the  plea  of  payment  should  conclude  to  the  country : 
The  court  is  unanimously  of  opinion  that  the  plea  of  pay- 
ment is  res|x»nsive  to  the  negation  of  non-payment  in  the  de- 
claration ;  and  that  the  act  of  assembly,  bv  allowino-  a  general 
plea  of  payment  in  all  cases,  with  a  right  to  prove  all  anterior 
payments,  in  fact  makes  it  a  general  issue  in  this  country; 
and  in  Douglass  v.  Cent.  L.  Co.  Vl  W.  Va.  502,  it  was  held 
that  the  plea  of  payment,  whether  it  be  in  assumpsit  or  debt, 
should  conclude  to  the  country.  Miehie's  note  to  Henderson 
V.  Southall,  supra. 

Plea  of  N on- Assumpsit,  see  that  Title. 

Plea  of  Nil  Debet,  see  that  Title. 

Plea  of  Non  Est  Factum,  see  that  Title. 


176  Legal   Aphorisms. 

Plea  of  ISTul  Tiel  Record. 

A  party  may  plead  mil  tiel  record,  and,  if  upon  inspection 
by  the  court,  the  record  is  not  such  as  is  described  in  the 
pleadings,  he  will  have  judgment ;  or  he  may  crave  oyer  of 
the  record,  which  makes  the  record  a  part  of  the  pleadings  in 
that  case ;  and  when  it  is  spread  upon  the  record  by  oyer,  if 
the  party  admits  that  the  record  of  which  oyer  is  given  him 
is  the  true  record,  and  relies  that  it  does  not  support  the 
pleadings  or  scire  facias,  it  seems  to  me  that  he  should  not 
deny  that  there  is  such  a  record,  by  plea ;  but  that  he  ought 
to  demur,  upon  the  ground  that  it  varies  from  the  pleadings 
or  scire  facias.  If  he  denies  the  verity  of  the  record,  of 
which  oyer  is  given,  he  should  plead  7iul  tiel  record  after  oyer. 
4  Rand.  330. 

Special  Plea. 

I  do  not  understand  that  anything  can  be  pleaded  spe- 
cially which  amounts  to  the  general  issue,  whether  it  be  mat- 
ter of  law  or  not.  Infancy,  coverture,  usury  and  gaming  are 
matters  of  law  which  may  be  pleaded  specially  or  given  in 
evidence  under  the  general  issue,  at  the  option  of  the  defend- 
ant. But  they  do  not  amount  to  the  general  issue ;  because 
they  do  not  traverse  any  matter  which  the  plaintiff  must 
prove  to  sustain  his  action.  They  give  color  of  action  to  the 
plaintiff,  as  every  good  special  plea  must,  although  they  show 
that  in  law  he  never  had  a  good  cause  of  action.  In  this 
respect  only  they  differ  from  matters  in  confession  and  avoid- 
ance; which  admit  that  the  plaintiff  once  had  a  good  cause 
of  action,  but  show  that  it  has  since  been  discharged.  NW. 
matters  of  defence  which  give  color  of  action  to  the  plaintiff, 


Legal   Aphorisms.  177 

may  be  pleaded  especially;  and  all  matters  of  defence  which 
do  not  give  snch  color  of  action,  anionnt  to  the  general  issue, 
;iii(l  nnist  be  liiven  in  evidence  nnder  it.  .Moiicurc,  J.,  14 
Gratt.  454.  Accord  and  satisfaction  must  he  pleaded  spe- 
cially in  debt  on  simple  contract,  and  may  be  given  in  evi- 
dence under  the  general  issue  in  assumpsit,  but  in  debt  on 
simple  contract,  covenant  and  trespass  it  must  be  specially 
pleaded.  2  Green.  Ev.,  sec.  29.  Custom  (ir  usage  of  trade, 
where  it  will  excuse  the  non-performance  of  a  duty  pre- 
scribed by  law  (5  Gratt,  24),  and  a  warranty  (6  Gratt.  397) 
must  be  pleaded  specially. 

A  plea  amounts  to  the  general  issue  when  it  traverses  mat- 
ter which  the  plaintiff  avers,  or  must  prove,  to  sustain  his 
action  ;  whether  such  traverse  be  direct  or  argumentative.  14 
Gratt.  453 ;  or  when  it  denies  by  anticipation  some  essential 
allegation  of  the  declaration,  which  the  plaintiff  must  him- 
self prove  to  make  (»ut  a  prima  facie  case.  4  Va.  L.  Reg.  771. 
The  usual  test  of  an  objection  that  the  plea  amounts  to  the 
general  issue  is,  whether  it  takes  away  all  color  for  maintain- 
ing an  action,  by  fixing  a  negative  upon  the  plaintiff's  right 
in  the  first  instance.     1  Hill  267. 

Bcplicaiion  to  Special  Plea. — AVhere  the  plea  of  the  de- 
fendant is  not  the  general  issue,  but  a  special  plea  concluding 
with  a  verification,  there  can  be  no  joinder  of  issue  without  a 
replication.  In  cases  of  this  kind,  a  statement  upon  the 
record  that  issue  was  joined  on  the  plea  is  not  sufficient.  G 
Rand.  20 ;  2  11.  &  M.  268 ;  1  Rob.  (old)  Pr.  218;  99  Va.  276. 

As  to  whether  a  defence,  which  amounts  to  the  general 
issue,  must  be  so  nuide.    4  Va.  L.  Res;.  769. 


178  Legal    Aphoeisms. 

Plea  of  Matter  Arising  After  Action  Brought. 

The  rights  of  parties  at  the  trial  are  the  same  as  thej 
were  at  the  commencement    of    the    suit ;    or,    if    they    are 
changed,  a  plea  puis  darrein  continuance  ought  to  place  the 
new  facts  on  the  record.     It  is  important  to  uphold  the  prin- 
ciple, that  a  plaintiff  is  entitled  to  recover  by  way  of  damages 
all  that  at  the  commencement  of  the  suit  he  has  lost  through 
the  wrong-ful  act  for  which  the  defendant  is  sued,  Ld.  Den- 
man,  C.  J.  6  Eob.  Pr.  6 GO.    Generally  speaking,  the  rights  of 
parties  at  the  trial  are  the  same  as  they  were  at  the  com- 
mencement of  the  suit ;    if  they  are  changed,  there  should  be 
a  plea  of  the  new  matter.    C  Monroe  115;  0  A.  &  E.  X.  S., 
178.    The  general  rule  is  that  matter  of  defence  (/.  e.,  a  full 
defence,  5  Hill  391),  arising  after  action  brought  cannot  be 
admitted  in  evidence  under  the  general  issue.    3  T.  R.  10 ; 
Id.  18&;  11  Johns.  121;  1  B.  &  C.  390;  2  liar.  &  Gill  191; 
or  under  a  plea  of  matter  existing  before  action  brought  in 
bar  of  the  action  generally.    1  East.  507;  12  Gill  k  J.  361. 
Even  in  respect  to  payment,  there  are  cases  holding,  that  if 
made  after  action  brought,  it  should  be  introduced  by  plea. 
1  Holt,  X.  P.  0 ;  12  Gill  &  J.  361 ;  19  Conn.  532 ;  5  Rob.  Pr. 
372. 

But  when  the  action  was  well  brought  and  the  defendant 
has  some  matter  in  discharge  arising  afterwards,  he  should 
plead  it  specially  in  bar  of  the  further  maintenance  of  the 
action.  It  cannot  be  given  in  evidence  under  the  general 
issue.  I  speak  of  cases  where  the  matter  set  up  is  a  full  de- 
fence. A  partial  defence  can  never  be  pleaded,  because  every 
plea  in  bar  must  contain  a  full  answer  to  the  declaration  or 
count  to  which  it  is  pleaded.     Most    partial    defences    may 


Legal    Aitiorisms.  179 

thei-eforp  be  given  in  evidence  under  the  general  issue.  5 
Tlill  39^4.  The  ple^  puis  davrcin  continuance  is  a  waiver  of 
the  former  plea.  It  is  a  plc^a  in  bar  of  the  further  prosecu- 
tion of  the  suit,  going  to  the  foundation  of  the  action.  But 
even  in  a  plea  in  abatement  pleaded  imis  dan-ein  continuance, 
the  judgnu^it,  either  upon  demurrer  or  verdict,  is  final,  quod 
recvperef.  and  not  respondeat  ouster.  1  Ld.  Ra^^n.  693;  1 
Salk.  ITS;  10  Wend.  GTS.  This  rule,  however,  does  not 
apply  where  the  matter  of  the  plea  affects  the  plaintiff's 
remedy  only,  and  not  his  right  of  action.  A  discharge  under 
the  act  abolishing  imprisonment  for  debt  in  certain  cases,  is 
not  a  waiver  of  a  plea  in  bar  previously  pleaded.  It  seeks 
merely  to  modify  the  remedy,  not  to  defeat  the  action.  2 
Wend.  300;  14  Wend.  16^. 

By  reason  of  pleas  of  this  kind  having  a  tendency  to 
delay,  great  strictness  is  required  in  framing  them.  In  this 
respect  they  are  viewed  much  like  pleas  in  abatement,  and 
for  the  same  reason,  they  must,  like  those  pleas  be  verified  by 
affidavit.  1  Chitty  PI.  (12  Am.  Ed.)  660;  1  Tidd's  Pr.  (1 
Am.  Ed.)  TT6-TT8;  11  X.  E.  (Ills.)  402. 

Replication  to  Special  Plea. — Where  the  plea  of  the  de- 
fendant is  not  the  general  issue,  but  a  special  plea,  concluding 
with  a  verification,  there  can  be  no  joinder  of  issue  without  a 
replication.  In  cases  of  this  kind,  a  statement  upon  the 
record  that  issue  was  joined  on  the  plea  is  not  sufficient.  6 
Rand.  20;  2  H.  &  M.  268;  1  Rob.  (old)  Pr.  218.  But  see  99 
Va.  2T6. 

Some  Grounds  of  Exception  to  Plea  or  Replication. — 
1.  That  the  action,  as  set  forth  in  the  replications,  does  not 


180  Legal   Aphoeisms. 

lie  against  executors.  2.  That  the  replications  are  a  departure 
from  the  declaration.  3.  That  they  are  double,  inconsistent 
and  uncertain ;  and  4.  That  the  excuse  set  forth,  in  avoidance 
of  the  plea,  is  insufficient. 

Pledges. 

Eight  and  remedies  of  pawnee  or  pledgee  to  make  pawn 
or  pledge  available.  22  Gratt.  201 ;  27  Gratt.  753.  What,  in 
the  case  of  commercial  paper.     22  Gratt  262. 

As  to  duty  of  pawnee  to  sell  personal  property  pawned  or 
pledged.    27  Gratt.  753. 

A  factor  has  the  possession  of  the  property  of  his  princi- 
pal, with  full  power  to  sell  for  cash  or  on  credit,  and  on 
a  credit  sale^  to  transfer  or  collect  the  debts.  All  such  acts 
may  be  for  the  benefit  of  the  principal ;  and  the  subsequent 
misuse  of  the  funds  that  may  thus  come  to  his  hands  in  no- 
wise invalidates  the  sale,  transfer  or  collection.  But  he  can- 
not pledge  the  goods,  or  the  note  taken  on  the  sale  of  them, 
for  his  own  debt,  so  as  to  give  the  pledgee  a  title  paramount 
to  that  of  his  principal.  Comyn.  on  Cont.  538,  9.  And  this, 
though  the  pledgee  did  not  know  that  the  party  with  whom 
he  dealt  was  not  in  reality  what  he  ostensibly  was,  the  owner 
of  the  goods.   1  Man.  &  Sel.  140 ;  1  Rob.  E.  146. 

Distinction  between  pledge  and  mortgage  of  personal 
chattels.  There  is  a  material  distinction  between  a  mortgage, 
properly  so  called,  of  personal  chattels  and  a  pledge.  The 
mortgage  is  a  conveyance  of  the  title  upon  condition;  the 
legal  property  passes  to  the  mortgagee,  and  at  law  he  has  the 
absolute  estate,  if  there  be  no  redemption  by  a  given  time.  A 
pledge  or  pawn  is  a  deposit  of  goods  redeemable  on  certain 
terms;    the  pawnee  has  only  a  special  property,  and  though 


Legal    Aimiokisms.  181 

a  day  of  payment  be  fixed  and  there  be  a  failure  to  pay  by 
that  day,  the  general  ownership  still  remains  with  the 
pawner.  The  law  on  the  subject  of  pledges  is  investigated 
with  "i-eat  learnina,'  and  ability  bv  Kent,  J.  2  Caines  Cases  in 
Error  200 ;  2  Rob.  (old)  Pr.  56-7.  A  pawnee  has  only  a  lien 
on  goods  deposited  as  a  pledge,  which  cannot  be  maintained 
but  upon  the  basis  of  possession.  If  therefore  he  relinquishes 
the  possession,  although  the  debt  remains  unpaid,  the  lien  is 
ipso  facto  extinguished.  But  there  is  an  obvious  and  material 
distinction,  in  this  respect,  between  a  pledge  and  a  mortgage. 
By  the  latter  the  right  of  property  passes  to  the  mortgagee, 
and  he  may  dispose  of  it  as  he  sees  fit,  subject  only  to  the  con- 
dition or  right  of  redemption.  Possession  is  not  essential  to 
his  title.     2  Pick.  610. 

Powers. 

A  party  dealing  with  an  agent  acting  under  a  written 
authority,  must  take  notice  of  the  extent  and  limits  of  that 
authority.  He  is  to  be  regarded  as  dealing  with  the  power 
before  him;  and  he  must,  at  his  peril,  observe  that  the  act 
done  bv  the  ao-ent  is  leaallv  identical  with  the  act  authorized 
by  the  power.  11  Gratt.  286;  1  Rob.  R.  143;  30  W.  Va.  152 
S.  C;  19  S.  E.  541. 

\Mien  Equiiij  Will  Aid  a  Defective  Execution  of  a  Power. 
It  is  certainly  true  that  in  some  cases  in  favor  of  certain 
classes,  equity  will  aid  a  defective  execution  tif  a  power.  IT 
will  do  so  in  l)ehalf  of  buiui  jidc  purchasers  for  value  and 
some  other  parties,  where  the  instrument  by  which  the  execu- 
tion is  attempted  is  informal  or  inappropriate,  t»r  being 
formal  or  appropriate,  the  execution  is  iuformal,  as  where 
a  certain  number  of  witnesses  is  required  and  a  less  mimber 


182  Legal   Aphoeisms. 

is  present,  or  wliere  the  iiistrumeiit  is  required  to  be  signed 
and  sealed,  and  it  is  signed  only,  and  so  on.  Toilet  v.  Toilet,  1 
Lead.  Cas.  Eq.  (Ed.  1876),  top  page  365,  372;  30  Gratt. 
574.     See,  also,  33  Gratt.  78 ;  79  Ya.  45. 

Peesumptions. 

Presumptions  are  said  by  a  learned  writer  to  be  of  two 
kinds,  legal  and  artificial,  and  natural.  The  former  derive 
from  the  law  a  technical  and  artificial  operation  and  effect 
beyond  their  mere  natural  tendency  to  produce  belief.  The 
latter  act  merely  by  virtue  of  their  own  natural  efficacy.  3 
Stark.  Ev.  1235.  The  writer  then  illustrates  by  the  case  of  a 
bond  which  has  been  suffered  to  stand  for  twenty  years  or 
upwards  without  payment  of  interest  or  other  acknowledg- 
ment of  its  existence.  In  such  a  case,  satisfaction  of  the  bond 
is  a  legal  presumption.  But  if  a  shorter  period,  even  a  single 
day  less  than  twenty  years  has  elapsed,  the  presumption  of 
satisfaction  from  mere  lapse  of  time  does  not  arise,  though  in 
the  latter  case  it  may  be  inferred,  where  other  circumstances 
render  it  probable ;  but  in  this  case  the  mere  lapse  of  time 
possesses  no  artificial  or  arbitrary  oj)eration,  but  is  left  to  its 
mere  natural  tendency  to  convince  the  minds  of  the  jury  that 
the  debt  has  been  paid.     12  Gratt.  588. 

An  inference  cannot  be  drawn  from  a  presumption,  but 
must  be  founded  upon  some  fact  legally  established.  Bailey 
on  Per.  Inj.,  sec.  1675;  102  Va.  139. 

Presumptions  that  the  law  will  raise  are  collected  in 
Cowen  &  Hill's  notes  to  Phil.  Ev.,  Vol.  2,  note  195 ;  and  1 
Greenl.  Ev.,  sec.  28,  et  seq. 

The  dejDositing  a  letter  in  the  post-ofiice,  addressed  to  a 


Legal    Aphorisms.  183 

iiic'ivhant  at  his  place  of  business,  is  prima  facie  evidence  that 
he  received  it  in  the  ordinary  course  of  the  mails ;  and  where 
there  is  no  other  evidence  the  jury  should  he  so  instructed. 
Citiuii-  with  other  authorities  1  Greenl.  Ev.,  sec.  40.  The 
l)resumption  so  arising  is  not  a  conclusive  presumption  of 
law,  but  a  mere  inference  oi  fact,  founded  on  the  probability 
that  the  officers  of  the  government  will  do  their  duty,  and  the 
usual  course  of  business ;  and  when  it  is  opposed  by  evidence 
that  the  letter  was  never  received,  must  be  weighed,  with  all 
the  other  circumstances  of  the  case,  by  the  jury,  in  determin- 
ing the  question  whether  the  letter  was  actually  received  or 
not ;  and  the  burden  of  proving  its  receipt  remains  through- 
out upon  the  party  who  asserts  it.    105  Mass.  392. 

It  cannot  be  assumed  that  an  officer  has  been  guilty  of  im- 
proper conduct  in  the  discharge  of  a  duty  incident  to  his 
office,  though  such  a  fact  may  be  shown  by  proof  when  put  in 
issue.    101  Va.  57. 

When  the  Question  of  Presumption  or  Prohahility  Will 
Be  Referred  to  the  Jury. — The  court  refers  to  its  own  knowl- 
edge of  events  so  far  as  to  consider  whether  it  can  say  that 
there  is  no  probability  or  presumption  of  fact  that  when  facts 
A  and  B  exist,  of  which  there  is  direct  evidence,  fact  C  also 
exists  by  way  of  cause,  effect,  or  concomitant.  If  it  cannot, 
then  it  leaves  it  to  the  jury  to  say  whether,  according  to  their 
experience,  there  is  such  a  probability  or  presumption.  145 
Mass.  387-8. 

It  is  contrary  to  the  rules  of  evidence,  to  base  a  presump- 
tion upon  a  presumption.  17  Gratt.  542.  Yet  there  are  cases 
ill  which  the  court  may  infer  the  intent  of  a  party  from  the 
fads  found   in  a  special  verdict,  although  the  intent  be  not 


184  Legal    Aphokisms. 

proved.  Where  such  intent  is  inferred,  it  is  an  inference  of 
law  from  the  facts,  and  not  an  inference  of  one  fact  from 
another.  1  Rob.  (old)  Pr.  373.  Instances  of  attempted  bas- 
ing one  presumption  upon  another:  That  no  communication 
was  made^  and  that  had  it  been  made  correctness  of  account 
would  by  it  have  been  admitted  (17  Gratt.  542)  ;  that  a  ques- 
tion was  answered  and^  then,  that  the  answer  was  of  such  a 
nature  as  to  be  inadmissible  (10  Gratt.  8),  and,  that  a  party 
saw  a  prospectus,  and,  then,  that  he  relied  upon  it.  58  Penn. 
St.  R.  126. 

Principal  and  Agent.    8ee  Agency. 

When  money  of  another  is  placed  in  his  hands,  there  are 
three  modes  which  a  person  may  adopt — (1)  To  keep  it  in 
his  own  house ;  if  he  does  so,  and  does  not  mix  it  up  with  his 
own  money  for  his  own  use,  he  is  liable  only  as  bailee ;  (2)  to 
pay  it  into  his  banker's,  on  his  general  account,  in  which  case 
he  is  liable,  because  there  is  no  ear  mark,  or  anything  to  indi- 
cate that  it  is  deposited  as  the  client's  money ;  on  the  contrary, 
such  a  deposit  imports  a  deposit  of  his  own  money  on  his  own 
account;  and  (3)  which  the  Chief  Justice  says  is  the  correct 
mode,  to  open  a  new  account,  in  his  own  name,  for  this  par- 
ticular purpose.  The  right  way  is  to  deposit  it  with  a  banker, 
in  the  name  of  the  fiduciary,  for  the  credit  of  his  client.  21 
Gratt.  255. 

Principal  who  has  been  wronged  by  the  misconduct  of  his 
agent,  may  pursue  not  only  him,  but  those  who  have  actively 
co-operated  in  his  breach  of  duty  and  accepted  their  share  of 
the  profits  of  the  transaction.    150  Mass.  466;  98  N.  Y.  167. 

Rule  of  liability  of  principal  for  unauthorized  torts  of 
agent.    75  Va.  178. 


Legal    Aimiokisms.  T^T) 

Till'  doctrine  that  the  possession  of  an  agent  is  the  posses- 
sion of  the  principal,  has  no  application  to  the  case  of  a  wrong 
doer.     3  Rob.  Pr.  73. 

Agent's  use  of  principal's  proj^erty  to  pay  his  own  debts. 
14  L.  R.  A.  234. 

Liability  of  agent  for  conversion,  trespass  or  other  posi- 
tive act  of  wrong-doing  against  third  persons  under  em- 
ployer's orders.     50  L.  R.  A.  644. 

When  notice  to  agent  is  notice  to  principal.  1  Va.  L.  Reg. 
153  ;  33  Gratt.  487. 

Knowledge  of  or  notice  to  agent  is  knowledge  of  or  notice 
to  principal  when  the  agent  acts  for  himself,  in  the  perpetua- 
tion of  a  fraud  in  connection  with  the  agency.  150  Mass. 
200,  S.  C.  22  K  E.  1)17;  but  there  is  an  exception  to  this 
rule  when  the  agent  is  engaged  in  committing  an  independent 
fraudulent  act  on  his  own  account,  and  the  facts  to  be  im- 
puted relate  to  this  fraudulent  act.  Idem. ;  65  Fed.  R.  017, 
S.  C.  12  C.  C.  A.  643. 

The  declarations  of  an  agent  are  competent  as  evidence 
to  charge  the  principal,  only  when  they  are  a  part  of  the  res 
gestae.  By  this  we  understand  that  such  declarations  are 
evidence  onlv  where  thev  relate  to  the  identical  contract,  that 
is  the  matter  in  controversy.  A  declaration  to  another  party 
in  reference  to  another  contract,  and  made  at  a  prior  time, 
does  not  fall  within  the  rule  admitting  such  (>vidence.  The 
party  is  not  excused  in  such  case  from  proving  the  fact  in  the 
ordinary  way  by  the  testimony  of  the  agent,  if  it  be  one  perti- 
nent to  the  issue.  As  cases  strongly  bearing  upon  this  point, 
see  Beetham  v.  Benson,  Gow's  R.  45  ;  13  Barb.  246  ;  65  ]\rass. 
206. 


186  Legal   Aphokisms. 

Ill  an  action  against  the  principal  on  a  note  signed  bv  an 

agent  instead  of  saying  the  said made  and  sigiied  a 

writing,  say  said ,  by  E.  F.,  his  agent,  made  a  writing, 

signed  by  the  said  agent,  &c.   4  Eob.  Pr.  200. 

Instruction  on  Scope  of  Agent's  Powers. — The  court  in- 
structs the  jury  that  every  delegation  of  authority,  or  creation 
of  an  agency,  unless  the  extent  of  such  authority  or  agency  be 
expressly  limited,  carries  with  it  the  power  to  do  all  those 
things  which  are  necessary,  proper  and  usual  to  be  done  in 
order  to  effectuate  the  purpose  of  the  agency,  and  embraces 
all  the  appropriate  means  necessary  to  accomplish  the  desired 
ends.    98  Va.  242. 

Principal  and  Surety — See  Surety. 
The  remedies  of  the  surety  against  his  principal  are : 

1.  To  pay  the  debt,  and  recover  same  back  from  the  prin- 
cipal, which  he  may  do  by  action,  or,  in  most  cases  after  judg- 
ment or  execution  against  him,  by  the  summary  statutory  pro- 
ceeding by  motion. 

2.  If  he  is  apprehensive  of  suffering  by  reason  of  the  for- 
bearance of  the  creditor,  he  may  file  his  bill  in  chancery 
against  the  principal  to  compel  him  to  make  payment  himself 
to  the  creditor. 

3.  Though,  independently  of  statutory  provision,  the 
surety  is  not  absolved  from  his  obligation,  by  the  refusal  of 
the  creditor  to  sue  the  principal,  after  having  been  requested 
i)y  the  surety  to  do  so,  yet  the  latter  may,  l)y  his  bill  in  equity, 
invoke  the  authority  of  that  forum  to  compel  the  creditor  to 
bring  his  action  against  the  princi])al,  n\)(m  being  indemni- 
fied against  the  consequences  of  risk,  delay  and  expense;    it 


Legal   Aphorisms.  187 

being  reasonable  that  sneh  an  act  of  benevolence  should  be 
extended  to  the  surety,  when  it  can  be  done  without  prejudice 
to  the  creditor.  This  exercise  of  equitable  jurisdiction, 
though  in  form  against  the  creditor,  is  substantially  a  remedy 
for  the  surety  against  his  principal;  the  proceeding  at  law, 
though  conducted  by  the  creditor,  being  in  truth  for  the 
benefit  of  the  surety. 

4.  A  statutory  remedy  is  provided  in  certain  cases,  for  the 
procurement  by  the  surety  of  an  action  against  his  principal, 
authority  being  given  to  sureties  bound  by  any  contract,  if  a 
right  of  action  has  accrued  thereon  to  require  the  creditor,  by 
notice  in  writing,  forthwith  to  institute  suit  thereon,  and  pro- 
ceed with  due  diligence  to  recover  the  money,  on  pain  of  in- 
curring, in  case  of  his  failure  to  do  so,  the  exoneration  of  the 
surety.    V.  C.  §§  2890,  2891 ;    G  Gratt.  524. 

When  a  surety  gets  rid  of  and  discharges  an  obligation 
at  a  less  sum  than  its  full  amount,  he  cannot,  as  against  his 
principal,  make  himself  a  creditor  for  the  whole  amount ;  but 
can  only  claim  as  against  his  principal  what  he  has  actually 
paid  in  discharge.  22  Gratt.  752.  See,  also,  2  Eob.  Pr.  440 ; 
12  Gratt.  642;  7  X.  E.  578;  29  Gratt.  144. 

The  creditor,  as  a  general  rule,  is  under  no  obligations  to 
look  to  the  principal  debtor  or  to  his  property;  he  is  not 
bound  to  exhaust  his  remedies  against  the  latter  before  resort- 
ing to  the  surety.  But  the  rule  is  not  universal.  Hays  v. 
Ward,  4  Johns.  Chy.  K.  127;  2(;  Gratt.  G17.  Creditor  may 
enforce  payment  from  either  principal  or  surety  (25  Gratt. 
230;  Idem.  563)  ;  but  a  court  of  e(iuity  will  not,  ordinarily, 
subject  the  surety's  estate  to  the  payment  oi  the  principal's 
debt,  where  both  are  being  administered  by  the  court,  until 


188  Legal   Aphokisms. 

the  principal's  estate  has  been  exhausted.  100  Va.  747 ;  and 
in  28  Gratt.  825,  the  court  say:  The  principal  debtor's  lands, 
in  a  suit  in  which  all  the  parties  are  alive  and  before  the 
court,  should  be  first  subjected  to  the  exoneration  of  the  lands 
of  the  sureties,  as  far  as  that  can  be  done  without  too  great 
delay,  and  without  prejudice  to  the  rights  of  the  creditor, 

Peocess.  See  Judgment.  Infant. 
As  remarked  by  Judge  Bell  in  the  case  of  the  State  v. 
Eichmond,  6  Foster  237:  There  is  in  our  books  great  loose- 
ness and  no  little  confusion  in  the  use  of  the  terms  void  and 
voidable,  growing,  perhaps,  in  some  degree,  out  of  the  imper- 
fection of  our  language.  There  are  at  least  four  kinds  of  de- 
fects which  are  included  under  these  expressions ;  while  we 
have  but  two  terms  to  express  them  all. 

1.  Proceeding's  may  be  wholly  void,  without  force  or 
effect  as  to  all  persons  and  for  all  purposes,  and  incapable  of 
being,  or  being  made,  otherwise.  This  is  the  broadest  sense 
of  the  word. 

2.  Things  may  be  void  as  to  some  persons  and  for  some 
purposes,  and,  as  to  them,  incapable  of  being  otherwise, 
which  are  yet  valid  as  to  other  persons,  and  effectual  for  other 
purposes — as  a  deed  executed  by  an  idiot  and  by  others  capa- 
ble of  contracting,  may  be  void  as  to  the  idiot,  yet  binding 
as  to  others ;  an  instrument  in  the  form  of  a  deed,  but  with- 
out a  seal,  may  be  void  as  a  conveyance,  and  yet  binding  for 
some  other  purposes. 

8.  Things  may  be  void  as  to  all  persons  and  for  all  pur- 
poses, or  as  to  some  persons  and  for  some  purposes,  though 
not  so  as  to  others,  until  they  are  confirmed ;  l)ut  though  said 
to  be  void,  they  are  not  so  in  the  broadest  sense  of  that  term. 


Legal   Aphorisms.  189 

or  c'voii  ill  is  spcoiidary  sense,  above  given,  because  they  have 
a  capacity  of  being  conlirniecl,  and  after  snch  confirmation 
they  are  binding.  For  this  kind  of  defect  our  language  affords 
no  distinctive  term.  They  are  strictly  neither  void — that  is, 
mere  nullities — nor  voidable,  because  they  do  not  require  to 
be  avoided,  but  until  eonfirnied  they  arc  without  validity. 
They  are  usually, spoken  of  as  void,  and  as  usage  is  the  only 
law  of  language,  they  are  so  called  correctly.  It  is  therefore 
always  to  be  considered  an  open  question,  to  be  decided  by  the 
connection  and  otherwise^  whether  the  term  void  is  used  in 
a  given  instance  in  the  one  or  the  other  of  these  in  some  re- 
spects dissimilar  senses. 

4.  Contracts  and  proceedings  are  properly  called  voidable, 
which  are  valid  and  effectual  until  they  are  avoided  by  some 
act.  Prima  facie,  they  arc  valid,  but  they  are  subject  to  de- 
fects, of  which  some  person  has  the  right  to  take  advantage, 
who  may  by  j)roper  proceedings  for  that  purpose  entirely 
defeat  and  destroy  them.  Voidable  contracts  are  in  general, 
perhaps  always,  like  the  last  class  referred  to  and  called  void, 
capable  of  confirmation  by  the  party,  who  has  a  right  to  avoid 
them.  Matters  which  are  properly  voidable  are  very  com- 
monly spoken  of  as  void.  Smith  v.  Saxon,  6  Pick.  487.  Tech- 
nically and  legally  speaking,  they  are  improperly  so  called. 
But  the  word  void  is  so  often  used  by  good  writers  and  even 
by  legal  writers,  in  the  sense  of  invalid,  ineffectual  or  not 
binding,  that  it  can  hardly  be  said  that  this  is  not  a  correct 
and  legitimate  use  of  the  term.  Our  books  are  full  of  ex- 
amples of  the  loose  and  inaccurate  use  of  these  words,  and 
many  difticult  questions  have  grown  out  of  these  circum- 
stances.    They  are  so  common  that  we  think  no  strong  infer- 


190  Legal    Aphokis 


MS. 


ence  is  to  be  justly  drawn  from  the  unqualified  use  of  these 
words,  as  to  the  particular  kind  or  degree  of  invalidity  meant, 
when  the  attention  of  the  court  is  not  clearlv  directed  to  that 
point.    15  W.  Va.  681. 

When  a  party  is  charged  in  a  bill  or  named  in  a  declara- 
tion in  the  capacity  in  which  he  is  liable  as  executor,  &c.,  it  is 
not  ground  of  demurrer,  that  the  subpoena  was  issued  to  him 
generally,  not  stating  the  capacity  in  which  he  is  sued.  Wal- 
ton V.  Herbert,  3  Green.  Ch.  73 ;  or,  as  stated,  1  Chitty  Pr. 
and  PI.  (7  Am.  Ed.)  284-:  Where  the  defendant  was  de- 
scribed in  process  generally,  he  might  be  declared  against  as 
administrator,  the  object  of  the  writ  being  merely  to  bring 
him  into  court.   6  Moore  66  S.  C. ;  3  B.  &  B.  4.  But  see  Writ. 

When  process  issues  in  wrong  given  name  and  is  served 
on  the  right  person,  it  is  simply  a  misnomer.   7  Gray.  378. 

Service  on  wrong  person.  5  Va.  L.  Reg.  570 ;  7  Id.  648 ; 
80  K  W.  700. 

Judgments  and  decrees  on  constructive  service  of  process. 
2  Va.  L.  Reg.  48. 

Prohibition.   2  Va.  L.  Reg.  253;  2  Va.  Cases.  42. 

Promises. 

As  the  law  will  not  imply  a  promise,  where  there  was  an 
express  promise,  so  the  law  will  not  imply  a  promise  of  any 
person  against  his  own  express  declaration,  because  such  de- 
claration is  repugnant  to  any  imputation  of  a  promise.  This 
does  not  apply,  however,  to  cases  in  which  the  law  creates  a 
duty  to  perform  that  for  which  it  implies  a  promise  to  pay, 
notwithstanding  the  party  owing  the  duty  absolutely  refuses 
to  enter  into  an  obligation  to  perform  it.  The  law  promises 
in  his  stead  and  in  his  behalf.    As  if  a  man  absolutely  refuses 


Legal    Aphorisms.  101 

to  furnish  food  to  bis  wife  or  minor  children,  there  may  be 
circumstances  under  which  the  hiw  will  compel  him  to  per- 
form his  f)l)lig'ations,  and  will  of  its  own  force  imply  a 
promise  against  his  protestation.  But  such  promise  will 
never  be  implied  against  his  j^rotest,  except  in  cases  where  the 
law  itself  imposes  a  duty ;  and  this  duty  must  be  a  legal  duty ; 
nor  will  a  promise  will  not  necessarily  be  implied  from  the 
mere  fact  of  having  received  a  benefit.  123  Mass.  28 ;  7  Mass. 
107 ;  130  Mass.  597.       ' 

When  the  consideration,  although  past  and  executed,  will 
support  an  action  by  reason  of  there  having  been  an  antece- 
dent request,  express  or  implied,  it  is  a  general  and  very  im- 
portant rule,  that  the  consideration  "will  support  no  other 
promise  than  such  as  would  be  implied  by  law."  Thus,  where 
an  account  has  been  stated  between  the  parties,  and  a  balance 
ascertained  to  be  due  from  one  of  them  to  the  other,  the  law 
imjilies  a  j)romise  by  the  debtor  to  pay  on  request,  so  that  any 
expost  facto  promise  by  him  differing  in  its  nature  therefrom, 
ex.  gr.,  to  pay  on  a  particular  day  named,  would  be  nudum 
'pactum,  unless  made  upon  a  new  consideration.  If  this  were 
not  so,  there  would,  in  truth,  ''be  two  co-existing  promises  on 
one  consideration,"  a  state  of  things  manifestly  incongruous 
and  nonsensical.  Broom,  C.  L.  327;  2  Eob.  Pr.  310;  4  Rob. 
Pr.  237. 

Action  on  promise  made  to  one  for  the  benefit  of  another. 
V.  C.  2415 ;  2  Rob.  Pr.  23 ;  21  Gratt.  90 ;  95  Va.  120 ;  2  Rob. 
Pr.  307;  1  Johns.  139;  10  Wend.  156;  17  Mass.  404. 

Promissory  Xote. 

The  words  "value  received"  in  a  bill  of  exchange  or 
promissory  note,  express  only  what  the  law  must  imply  from 


192  Legal   Aphorisms. 

the  nature  of  the  instrument  and  the  relation  of  the  parties 
apparent  upon  it ;  and  that  whether  these  words  be  or  be  not 
inserted  in  it,  an  action  of  debt  would  lie  on  a  bill  for  the 
drawer  against  the  acceptor ;  or  lie  on  a  note  for  the  payee 
against  the  maker.  3  Kob.  Pr.  377.  The  acknowledgment  of 
"value  received"  is  evidence  of  consideration  in  a  note,  as 
well  as  in  a  deed.  3  Johns.  484;  7  Idem.  323.  And  where 
plaintiif  states  that  the  note  was  given  for  value  received  and 
the  note  so  says  on  its  face,  the  production  in  evidence  of  the 
note  puts  the  defendant  upon  his  defence.  7  Johns.  324.  And 
notwithstanding  the  usual  expression  of  consideration  such 
as  "for  value  received,"  (Src,  the  maker  may  show,  as  against 
the  payee  or  other  person  standing  in  the  same  situation,  that 
the  note  was  given  without  consideration  ;  or  that  the  consid- 
eration has  failed ;  or  that  a  fraud  in  respect  to  it  was  prac- 
ticed upon  him  by  the  other  party  and  in  a  proper  case  that 
the  consideration  was  illegal.  Cowen  &  Hill's  note  495  to 
Phil.  Ev.,  citing  innumerable  authorities.  As  a  consideration 
is  expressly  admitted  in  the  note  itself,  the  defendant,  to 
avoid  payment,  must  prove  that,  contrary  to  his  admission, 
no  value  or  consideration  was  in  fact  received.  6  Pick.  432. 
But  where  a  deed  states  that  "for  value  received  of  the  gran- 
tee, he  doth  grant,  &c.,  the  grantor  will  not  be  permitted  to 
say  that  there  was  no  value  received.  "Value  received"  is 
equivalent  to  saying,  money  was  received  or  a  chattel  was  re- 
ceived. It  is  an  express  averment,  ex  vi  termini,  of  a  quid 
pro  quo.  3  Johns.  436.  But  if  in  an  action  on  a  promissory 
note,  not  negotiable,  but  expressed  to  be  for  value  received 
(which  is  prima  facie  evidence  of  valuable  consideration)  the 
plaintifp  unnecessarily  set  forth  the  particulars  in  which  the 


Legal   Apjiokisms.  103 

value  consisted,  he  is  bound,  upon  the  general  issue,  to  prove 
them  precisely  as  laid.  7  Johns.  321;  4  Minor  1264,  And 
when  a  note  specifies  the  particular  value  received  this  is 
evidence  of  the  fact,  against  the  maker  and  his  representa- 
tives.  22  Graft.  53. 

If  after  a  note  has  become  a  complete  contract,  there  be 
written  on  the  back  of  it  a  guaranty  of  its  payment,  a  distinct 
consideration  should  be  proved  for  the  gniaranty.  2  Rob.  Pr. 
285.  The  defendant's  name  was  not  put  upon  the  note,  until 
it  had  been  negotiated  to  a  creditor ;  and  the  defendant  can 
■in  no  sense  be  regarded  as  an  original  party.  3  Mete.  275. 
He  cannot  be  charged  as  upon  a  subsequent  and  separate  con- 
tract of  guaranty,  for  want  of  a  consideration,  59  Mass,  83. 
A  promissory  note  in  form  "I  promise  to  pay,"  &c.,  and 
subscribed  by  two  persons  is  a  joint  and  several  note.  7  Mass. 
57, 

Implied  authority  to  fill  blanks,    6  Va,  L,  Eeg,  124, 
If  a  note  is  made  payable  to  several  persons,  not  partners, 
then  the  transfer  can  only  be  made  by  a  joint  endorsement  of 
all  of  them.    27  Gratt.  093. 

A  gift  of  a  promissory  note  by  transfer  on  separate  paper, 
must  be  accompanied  by  endorsement  or  delivery,  68  111.  25  ; 
Merwin  E.  &  E.  PI.  100,  note. 

An  action  of  gcnei-al  indebetatus  assumpsit  lies  to  re- 
cover on  a  promissory  note,  and  plaintiff  may  give  the  note  in 
evidence  to  sustain  his  action,   93  Ya.  686, 

A  note  or  written  simple  contract  may  be  declared  on, 
according  to  its  legal  effect  and  operation,  ll  has  been  de- 
cided that  a  note  made  to  Eichardson,  Metcalf  &  Co.  might 
miffht  be  declared  on  in  the    name  of    the    ^[edway  Cotton 


194  Legal    Appiorisms. 

Manufactory,  on  proof  that  such  name  was  used  by  that  cor- 
poration. Medway  Cotton  Manufactory  v.  Adams,  10  Mass. 
360.  In  a  comparatively  recent  English  case,  where  a  note 
was  made  payable  to  a  married  woman  during  coverture, 
which,  of  course,  was  a  note  in  legal  effect  payable  to  the  hus- 
band at  his  election,  it  was. declared  on  as  a  note  by  which 
the  defendant  promised  to  pay  to  John  Fearn  by  the  name 
of  Mrs.  Kachel  Fearn,  and  by  the  said  John  Fearn  indorsed 
to  the  plaintiff.  Burrough  v.  Moss,  10  B.  &  C.  558.  The 
same  principles  are  adopted  and  affirmed  in  a  recent  case  in 
this  court.     21  Pick.  486 ;  61  Mass.  114. 

It  is  sufficient,  if  there  is  in  fact  a  payee,  who  is  so  desig- 
nated that  he  can  be  ascertained.  Story  on  Xotes,  §  36.  The 
illustrations  of  the  manner  in  which  this  rule  has  been  ap- 
plied are  numerous;  to  bearer,  the  treasurer  of,  &c.,  or  his 
successor  in  said  office ;  the  trustees  of  a  particular  church ; 
to  the  order  of  J.  Y.  M.  estate;  to  B's  estate,  or  order,  &c., 
&c.   150  Mass.  166,  where  sundry  other  instances  are  given. 

Proximate  Cause. 

The  proximate  cause  is  the  efficient  cause,  the  one  that 
necessarily  sets  the  other  causes  in  operation.  95  U.  S.  117; 
101  Va.  370. 

Proximate  cause,  as  a  legal  term,  does  not  necessarily  im- 
ply closeness  or  nearness  in  point  of  time,  or  physical  se- 
quence of  events,  but  rather  closeness  or  nearness  in  casual 
connection.  A  collision  with  a  telephone  pole  near  the  center 
of  a  road  caused  the  plaintiff's  horse  to  run  away  and  collide 
with  a  second  pole  near  the  side  of  the  road,  causing  the  in- 
jury complained  of ;  the  first  pole  was  the  natural  and  proxi- 
mate cause  of  the  accident.  100  Va.  45.   See,  also,  92  Va.  329. 


Legal   Aphorisms.  195 

Where  the  defendant  had  placed  and  kept  illegally  a  sign 
which  a  gale  blew  down,  cansing  an  injury,  the  court  say:  It 
is  contended  that  the  act  of  the  defendant  was  a  remote,  and 
not  a  proximate  cause  of  the  injury.  But  it  cannot  be  re- 
garded as  less  proximate  than  if  the  defendant  had  placed  the 
sign  there  while  the  gale  was  blowing;  for  he  kept  it  there 
till  it  was  blown  away.  In  this  respect,  it  is  like  the  case  of 
Dickinson  v.  Boyle,  IT  Pick.  78.  The  defendant  had  wrong- 
fully placed  a  dam  across  a  stream  on  the  plaintiff's  land,  and 
allowed  it  to  remain  there ;  and  a  freshet  came  and  swept  it 
away;  and  the  defendant  was  held  liable  for  the  consequential 
damage.  It  is,  also,  in  this  respect,  like  the  placing  of  a  spout, 
by  means  of  which  the  rain  that  subsequently  falls  is  carried 
ujwn  the  plaintiff's  land.  The  act  of  placing  the  spout  does 
not  alone  cause  the  injury.  The  action  of  the  water  must  in- 
tervene, and  this  may  be*  a  considerable  time  afterwards.  Yet 
the  placing  of  the  spout  is  regarded  as  the  proximate  cause. 
So  the  force  of  gravitation  brings  down  a  heavy  substance ; 
yet  a  person  w'ho  carelessly  places  a  heavy  substance  where 
this  force  will  bring  it  upon  another's  head  does  the  act  which 
proximately  causes  the  injury  produced  by  it.  The  fact  that 
a  natural  cause  contributes  to  produce  an  injury,  which  could 
not  have  happened  without  the  unlawful  act  of  the  defendant, 
does  not  make  the  act  so  remote  as  to  excuse  him.  The  case 
of  Dickinson  v.  Boyle  rests  upon  this  principle.  So  Wood- 
w^ard  V.  Aborn,  35  Maine  271,  where  the  defendant  wrong- 
fully placed  a  deleterious  substance  near  the  plaintiff's  well, 
and  an  extraordinary  freshet  caused  it  to  spoil  the  water; 
also,  Barnard  v.  Poor,  21  Pick.  378,  where  the  plaintiff's 
property  was  consumed  by  a  fire  carelessly  set  by  the  defend- 
ant on  an  adjoining  lot.   lOG  Mass.  4G0. 


196  Legal   Aphoeisms. 

Where  a  railroad  train  was  unlawfully  run  over  a  hose 
extendino-  across  the  railroad  track  and  severed  the  hose,  in 
consequence  of  which  a  building  on  fire  which  otherwise  could 
have  been  saved,  was  destroyed,  the  severing  of  the  hose  was 
held  to  be  the  proximate  cause  of  the  destruction  of  the  build- 
ing. 100  Mass.  277.  And  where  a  lighted  squib  was  thrown 
in  a  market  place,  and  afterwards  thrown  about  by  others  in 
self-defence,  and  ultimately  hurt  the  plaintiff,  the  injury  was 
considered  the  immediate  act  of  the  first  thrower.  8  T.R.  190. 

But  when  a  train  was  wrongfully  run  past  a  station  and  a 
woman,  encumbered  with  bundles  which  incapacitated  her  for 
self-protection,  left  her  seat  and  took  position  on  the  moving 
train  on  the  platform,  from  which  she  was  thrown  by  a  sud- 
den jerk  of  the  car,  held  that  the  failure  to  halt  the  train 
was  the  remote,  and  not  the  proximate,  cause  of  the  accident. 
92  Va.  327. 

That  no  responsibility  for  a  wrong  attaches  wherever 
there  intervenes  the  independent  act  of  a  third  person  be- 
tween defendant's  negligence  and  the  injury  sustained,  which 
affects  and  is  the  immediate  cause  of  the  injury,  is  a  proposi- 
tion, without  doubt,  sustained  by  a  convincing  weight  of 
authority.    93  Va.  57. 

Punctuation.  See  Statutes. 
Punctuation  is  a  most  fallible  standard  by  which  to  inter- 
pret a  writing;  it  may  be  resorted  to  when  all  other  means 
fail ;  but  the  court  will  first  take  the  instrument  by  its  four 
corners,  in  order  to  ascertain  its  true  meaning ;  if  that  is  ajD- 
parent  on  judicially  inspecting  the  whole,  the  punctuation 
will  not  be  suffered  to  change  it.  Ewing  v.  Burnett,  11  Peters 
54;    89  Fed.  480. 


Legal   Aphokisms.  107 

The  court  will  not  arrest  the  course  of  justice,  merely  be- 
cause pleaders  are  careless  or  unskilful  in  ])unctuation,  or  do 
not  make  such  a  collocation  of  words  as  renders  their  meaning 
perfectly  perspicuous  on  the  first  reading.     10  Gray  476. 

Purchaser. 

No  party  can  be  permitted  to  purchase  an  interest  where 
he  has  a  duty  to  perform,  which  is  inconsistent  with  the  char- 
acter of  purchaser.  99  Va.  339.  As  was  said  by  ]^ord 
Elden  in  exparte  James,  S"  Ves.  345 :  This  doctrine  as  to  pur- 
chases by  trustees,  assignees,  and  persons  having  a  confiden- 
tial character,  rests  much  more  upon  general  principle  than 
upon  the  circumstances  of  any  particular  case.  It  rests  upon 
this,  that  the  purchase  is  not  permitted  in  any  case,  however 
honest  the  circumstances;  the  general  interest  of  justice  re- 
quiring it  to  be  destroyed  in  every  instance,  as  no  court  is 
equal  to  the  examination  and  ascertainment  of  the  truth  in 
much  the  greater  number  of  cases. 

It  has  been  established  and  classified  as  a  ''third  species 
of  fraud,  which  may  be  presumed  from  the  circumstances  and 
condition  of  the  parties  contracting;  and  this  goes  further 
than  the  rule  of  law,  which  is,  that  fraud  must  be  proved,  not 
presumed.    Chesterfield  v.  Janssen.   2  Ves.  Sr.  155. 

Treating  of  this  subject,  Mr.  Perry,  in  his  work  on 
Trusts,  sec.  194  (5th  ed. ),  says:  At  law.  fraud  must  be 
proved;  but  in  equity  there  are  certain  rules  prohibiting 
parties  bearing  certain  relations  to  each  other  from  contract- 
ing between  themselves,  and,  if  ])artics  bearing  such  rclatimis 
enter  into  contracts  with  each  other,  courts  of  equity  presume 
them  to  be  fraudulent,  and  convert  the  fraudulent  party  into 


198  Legal   Aphorisms. 

a  trustee.  And  herein  courts  of  equity  go  further  than  courts 
of  law,  and  presume  fraud  in  cases  where  a  court  of  law 
would  require  it  to  be  proved;  that  is,  if  parties  within  the 
prohibited  relations  or  conditions  contract  between  them- 
selves, courts  of  equity  will  avoid  the  contract  altogether, 
without  proof,  or  they  will  throw  upon  the  party  standing  in 
this  position  of  trust,  confidence,  and  influence,  the  burden  of 
proving  the  entire  fairness  of  the  transaction.  Thus,  if  a 
parent  buys  property  of  his  child,  guardian  of  his  ward,  a 
trustee  of  his  cesti  que  trust,  an  attorney  of  his  client,  or  an 
agent  of  his  principal,  equity  will  either  avoid  the  contract 
altogether,  without  proof,  or  it  will  throw  the  burden  of  prov- 
ing the  fairness  of  the  transaction  upon  the  purchaser ;  and, 
if  the  proof  fails,  the  contract  will  be  avoided,  or  the  purchase 
will  be  construed  to  be  a  trustee  at  the  election  of  the  other 
party.  99  Va.  339.  Such  a  transaction  is  not  void,  but  void- 
able only,  and  that  only  at  the  election  of  the  injured  party ; 
creditors  do  not  in  this  respect  stand  in  the  shoes  of  the  in- 
jured party;  they  can  only  avoid  the  transaction  by  proof 
that  it  was  a  fraud  upon  their  rights.     Idem.  340,  341. 

The  purchaser  of  an  equitable  title  takes  it  subject  to  all 
existing  equities.  Chief  Justice  Marshall,  in  Shines  v.  Craig, 
7  Cr.  48.  In  Chew  v.  Barnett,  11  Serg.  &  E.  389,  Chief  Jus- 
tice Gibson  said :  When  it  is  asserted  that  a  purchaser  for  val- 
uable consideration  takes  the  title  free  of  every  trust  or 
equity  of  which  he  has  no  notice,  it  is  intended  of  a  title  per- 
fect on  its  face ;  for  every  purchaser  of  an  imperfect  title 
takes  it  with  all  its  imperfection  on  its  head.  It  is  his  own 
fault  that  he  confides  in  a  title  which  appears  defective  to  his 
own  eyes,  and  he  does  so  at  his  peril.     Now  every  equitable 


Legal    Apjiokisms.  199 

title  is  incomplete  on  its  face.  It  is  iiutliiiig  mure  than  a  title 
to  i>o  into  ehancerv  to  have  the  legal  estate  conveyed,  and 
therefore  every  purchaser  of  a  mere  equity  takes  it  subject  to 
everv  clos  that  mav  lie  on  it,  ^vhether  he  has  notice  or  not. 
But  the  purchase  of  a  legal  title  takes  it  discharged  of  every 
trust  or  equity  which  does  not  appear  on  the  face  of  the  con- 
veyance, and  of  which  he  has  not  had  notice,  either  actual  or 
constructive.   24  Gratt.  478 ;  95  Va.  303. 

Subrogation  of  Purchaser  to  Lien  of  Incumhrance  Paid 
jjy  Jlim. —  (1)  AYhere  the  purchaser  does  not  assume  the  debt, 
rights  and  remedies  of  the  parties.  By  written  contract, 
which  contains  no  reference  to  the  discharge  of  the  liens  then 
resting  on  the  land,  A  became  the  purchaser  of  a  tract  of  land 
from  B.  A  verbal  agreement  was  then  or  afterwards  made 
between  the  parties  that  A  should  apply  so  much  of  the  pur- 
chase money  as  might  be  necessary  to  the  payment  of  a  ven- 
dor's lien  then  resting  on  the  land.  This  verbal  agreement 
did  not  in  anv  manner  change  or  affect  the  rights  of  A,  and, 
although  his  deed  was  not  recorded  until  after  a  judgment 
had  been  gotten  against  his  vendor  and  docketed,  he  was  en- 
titled to  be  subrogated  to  the  rights  of  the  holder  of  the  lien 
he  had  paid  off,  as  against  the  judgment  creditor — the  court, 
in  delivering  its  opinion,  saying :  ISubrogatiou,  as  a  matter  of 
right,  independently  of  contract,  takes  place  for  the  benefit 
of  a  purchaser,  who  has  extinguished  an  incumbrance  w\^i\ 
the  estate  which  he  has  purchased.  Armentrout  v.  Gibbons, 
30  Gratt.  632.  It  will  be  applied  whenever  the  person  claim- 
ing its  benefit  has  been  compelled  to  pay  the  debt  of  a  third 
person  in  order  to  protect  his  own  rights  or  save  his  own  prop- 
erty.   Cole  V.  :\[alcolm.  00  X.  Y.  303  ;  McClaskey  v.  O'Brien, 


200  Legal    Aphorisms, 

16  W.  Va.  701.  A  sale  ordinarily  implies  that  the  vendee 
shall  have  a  clear  and  nnencnmbered  title ;  and,  nnless  it  is 
otherwise  agreed,  a  mortgage,  jndgment  or  other  incumbrance 
should  be  discharged  bj  the  vendor.  In  such  case  the  vendor 
is  primarily  liable  for  the  incumbrance;  and  if  he  fails  to 
discharge  it,  and  the  vendee  is  compelled  to  satisfy  in  order 
to  protect  the  property,  he  will  be  subrogated  to  the  incum- 
brance so  paid  off  by  him.  The  rule  is  stated  and  illustrated 
by  an  application  to  the  facts  in  the  case  of  Gatewood  v.  Gate- 
wood.  75  Va.  407,  thus:  Where  the  party  making  the  pay- 
ment occupies  the  position  of  surety  for  the  debt,  or  is  in 
some  way  personally  bound  for  its  payment,  such  person  may 
in  equity  require  an  assigimient,  or  transfer,  not  only  of  the 
mortgage  itself,  but  of  all  the  securities  held  by  the  creditor 
for  his  protection  and  indemnity;  and  although  no  such 
assignment  or  transfer  is  actually  made,  a  court  of  equity  will 
treat  it  as  done.  McXeil  v.  ^Miller  (W.  Va.),  2  S.  E.  335,  337. 

(2)  Rights  and  remedies  of  the  parties  when  purchaser 
retains  a  part  of  the  purchase  money  to  pay  off  an  incum- 
brance 13  Gratt.  195 ;  30  Gratt.  173 ;  77  Ya.  467. 

(3)  Rights  and  remedies  of  the  parties  when  purchaser 
assumes  payment  of  an  incumbrance.  Keller  v.  Ashford.  13rf 
U.  S.  610,  Law  Ed.  667 ;  33  Gratt.  582 ;  06  Va.  608 ;  04  Va. 
236;  77  Va.  462;  21  Gratt.  06;  of  a  judgment,  75  Va.  758; 
of  a  vendor's  lien,  98  Va.  530.  Where  purchaser  does  not 
execute  the  deed,  and  does  not  pay,  the  contract  on  his  part 
is  subject  to  the  limitations  applicable  to  simple  contracts — 
to  wit:  three  years.   101  Va.  658. 

The  plea  of  usury  cannot  be  sustained  in  favor  of  a  pur- 
chaser who  assumes  or  who  docs  not  assume  an  incumbrance. 


Legal   Aphorisms.  201 

4  Leigh  478,  41H,  493;  21  Gratt.  344;  1)U  Vu.  140;  03  Va. 
408  ;  DcWolf  V.  Johnson,  10  Wh(>at.  307. 

Receipts.  See  Payment,  Rent. 
When  a  receipt  is  given  for  a  payment,  the  general  opin- 
ion is  that  the  payment  may  l)e  proved  as  well  by  parol  evi- 
dence of  the  fact  as  by  the  production  and  proof  of  the  receipt, 
though  the  case  of  Hamlin's  Adm'r  v.  Atkinson,  6  Eand.  574, 
has  thrown  some  doubt  on  that  question  in  this  State.  7  Gratt. 
393.  If  a  witness  speaks  positively  as  to  the  date  and  amount 
of  a  payment,  and  the  jury  believe  him,  such  evidence  cannot 
be  considered  inferior  to  the  receipt.  In  one  aspect,  it  is 
superior.  For  the  receipt,  when  produced,  is  but  a  prima 
facie  acknowledgment  that  the  money  has  been  paid ;  and  the 
circumstances  under  which  it  was  obtained  may  be  proved  by 
a  witness  who  was  present  at  the  time  of  giving  it.  It  may  be 
proved  that  the  receipt  was  fraudulently  obtained ;  and  then 
the  receipt  will  amount  to  nothing,  and  the  cause  will  rest  on 
the  parol  evidence.  Skaife  v.  Johnson,  3  Barn.  &  Cress.  424 ; 
10  E.  C.  L.  Kep.  137 ;  1  Rob.  (old)  Pr.  305.  In  Fuller  v. 
Crittenden  (9  Com.  R.  401)  several  of  the  cases  on  this  sub- 
ject were  reviewed,  and  the  result  declared  to  be.  that  such 
circumstances  as  would  lead  a  court  of  equity  to  set  aside  a 
contract  (e.  g.  fraud,  mistake,  or  surprise)  may  be  shown  at 
law,  to  destroy  the  effect  of  a  receipt.  But  if  a  receipt  in  full 
is  given  with  a  knowledge  of  all  the  circumstances,  and  if 
there  is  no  mistake  or  surprise  on  one  side,  or  fraud  or  imjx)- 
sition,  it  will  be  effectual  to  defeat  a  further  claim.  Cowen 
c^-  Hill's  notes  to  Phil.  Ev.  489.  Rodemeir  v.  Brown,  109  111. 
S.  C. ;  Gl  x\m.  St.  R.  182 ;  33  K  E.  R.  1035. 


202  Legal   Aphorisms. 

Receivees. 

A  receiver,  whether  general  or  special,  is  generally  recog- 
nized as  an  officer  of  the  court.  He  is  frequently  spoken  of  as 
"the  hand  of  the  court,"  and  the  expression  aptly  designates 
his  functions,  as  well  as  the  relation  he  sustains  to  the  court. 
The  property  and  money  in  his  hands  are  in  the  possession 
and  under  the  control  of  the  court,  and  cannot  be  molested ; 
or  in  any  way  interfered  with^  except  with  its  consent,  by 
any  other  tribunal. 

As  was  said  by  the  Supreme  Court  of  the  United  States 
in  Booth  v.  Clark,  17  How.  331,  the  receiver  is  but  the  crea- 
ture of  the  court ;  he  has  no  powers  except  what  are  con- 
ferred upon  him  by  the  order  of  his  appointment,  and  the 
course  and  practice  of  the  court.  He  cannot  even  institute 
or  defend  actions  except  by  authority.  Wilson  v.  Simpson, 
4  How.  709.  In  Beverly  v.  Brooke,  4  Gratt.  187,  Judge 
Baldwin  said:  A  receiver  is  the  officer  and  representative  of 
the  court,  subject  to  its  orders,  accountable  in  such  manner 
and  to  such  persons  as  the  court  may  direct,  and  having,  in 
his  character  of  receiver,  no  personal  interest  but  that  arising 
out  of  his  responsibility  for  the  correct  and  faithful  discharge 
of  his  duties.  See,  also,  2  Davis  C.  Pleas,  1715-10,  1143; 
Goss  V.  Southall,  rec'r,  23  Gratt.  825. 

'Nor  are  the  powers  of  the  receiver  at  all  varied  or  in- 
creased by  the  fact  that  he  is  the  obligee  in  the  bond.  The 
legal  title  and  right  of  action  are  thereby  vested  in  him ;  but 
he  cannot  sue  except  by  the  direction  of  the  court  which  ap- 
pointed him,  and  whose  agent  he  is.  He  may  at  any  time 
be  superseded  and  another  appointed  in  his  place  to  collect 
the  money.    Clarkson  v.  Doddridge,  14  Gratt.  42.  *  *  *  In 


Legal   Aphorisms.  203 

all  judicial  sales  the  court  is  regarded  as  the  vendor  and  con- 
tracting party,  on  the  one  hand,  and  the  purchaser  on  the 
other.  If  the  bond  is  payable  to  a  commissioner  or  receiver, 
it  is  only  so  from  the  necessity  of  the  case,  because  the  court 
can  act  only  through  the  instrumentality  of  its  officers  and 
agents,  and  because  there  must  be  some  one  who,  in  behalf  of 
the  courts,  may,  if  need  be,  bring  the  action  at  law. 

The  fact  is,  the  entire  authority  of  the  receiver  is  limited 
to  the  single  duty  of  collecting  and  paying  over  the  money, 
and  all  who  deal  with  him  must  be  held  to  understand  the 
precise  nature  and  extent  of  his  powers.    33  Gratt.  711. 

The  utmost  effect  of  his  appointment  is  to  put  the  prop- 
erty from  that  time,  into  his  custody  as  an  officer  of  the  court, 
for  the  benefit  of  the  party  ultimately  proved  to  be  entitled, 
but  not  to  change  the  title  or  even  the  right  of  possession  in 
the  property.  Union  Nat.  Bank  v.  Bank,  &c.  136  U.  S.  236. 

The  general  rule  is  that  a  receiver,  who  is  a  mere  minis- 
terial officer  of  the  court  by  which  he  is  appointed,  must  have 
its  consent  and  authority,  either  general  or  special,  as  a  con- 
dition precedent  to  the  institution  of  a  suit  or  other  legal  pro- 
ceeding. 33  Gratt.  709  ;  79  Va.  331 ;  Smith  on  Rec'rs,  sec. 
69  ;  97  Va.  547.  And,  in  79  Va.  331,  it  is  said :  The  receiver 
is  but  the  creature  of  the  court ;  he  has  no  powers  except  what 
are  conferred  upon  him  by  the  order  of  his  appointment,  and 
the  course  and  practice  of  the  court.  He  cannot  even  institute 
or  defend  actions  except  by  authority.  33  Gratt,  710,  and 
cases  cited.  And  where  he  is  a  mere  officer  of  the  court,  hav- 
ing no  sort  of  personal  interest  in  the  subject  matter,  he  is 
not  a  necessary  party  to  any  litigation  or  proceeding  involv- 
ing the  rights  to  the  subject  matter.    33  Gratt.  711. 


204  Legal   Aphoeisms. 

Equity  must  have  jurisdiction  independent  of  the  ap- 
pointment of  a  receiver.    55  S.  E.  R.  669,  and  cases  cited. 

Where  it  is  desirable  to  make  the  appointment  general 
for  all  purposes  of  the  suit,  whatever  developments  may 
occur,  the  following  language  is  suggested  for  the  appoint- 
ing decree  in  the  decree  by  Professor  Lile,  5  Va.  L.  Reg. 
476 :  "A.  B.,  who  is  hereby  appointed  receiver  for  all  the  pur- 
poses of  this  cause,  both  in  its  present  and  any  future  aspect 
it  may  assume,  is  directed,"  etc.  And  for  the  condition  of 
the  bond  "To  faithfully  account  for  all  property  and  funds 
that  may  come  into  his  hands  in  this  cause,  and  faithfully  to 
discharge  every  duty  required  of  him  as  such  receiver  by  any 
order  entered  or  to  be  entered  herein." 

Form  of  a  decree  appointing  a  receiver  to  collect  debts. 

T5  Va.  445. 

Record. 

The  usual  mode  of  proving  the  record  of  another  court,  is 
by  the  production  of  a  certified  copy.  But  the  copy  is  not 
produced  in  such  cases,  because  it  is  better  evidence  than  the 
original.  It  is  received  only  on  the  ground  of  convenience,  as 
a  substitute  for  the  original  record.  The  reception  of  a  copy 
avoids  the  inconvenience  of  removing  the  original  record 
from  place  to  j^lace;  and  as  one  court  will  not  take  judicial 
notice  of  the  records  of  another,  the  certificate  supplies  the 
necessary  authentication.  But  the  original,  if  properly  au- 
thenticated, is  equally  admissible,  and,  is,  in  its  nature,  the 
highest  evidence.  Gray  v.  Davis,  27  Conn.  R.  447 ;  19  Gratt. 
18.  And  it  seems  that  the  admission  or  confession  of  the 
party  will  not  excuse  the  omission  to  produce  the  record  it- 
self, or  an  authenticated  copy  of  it.    G  Johns.  9 ;  and  in  any 


Legal    Aphorisms.  205 

ease  in  which  a  record  is  relied  on  as  evidence,  it  must  con- 
clude both  parties  to  the  case  or  neither.    12  Gratt.  319. 
Eecord  as  evidence.    See  Evidence. 

Recoupment. 

The  chief  points  of  difference,  says  Prof.  Lile,  between 
recoupment  and  set-off  are  shown  in  the  parallel  columns 
following : 

SET-OFF.  COMMOX-LAW  EECOUPMENT. 

1.  Arises  out  of  contract  sued  on.       i.  Arises  out  of  some  transaction 

dehors  the  transaction  sued  on. 

2.  Amount  need  not  be  liquidated.       2.  The  demand  must  be  liquidated. 

3.  May  only  repel  plaintiff's  claim       3.  May    not    only    repel    plaintiff's 
(in  whole  or  in  part) — no  re-  claim,  but    (in  Virginia)   judg- 
covery  over.  ment  for  the  excess  may  be  re- 
covered over  against  the  plain- 
tiff.    V.  C  3304. 

4.  May  be  shown  under  the  gen-  4.  Must  be  specially  pleaded,  or 
eral  iosue.  account    thereof   filed   with   the 

plea.     V.  C.  3298. 

5.  Will  not  avail  when  plaintiff's  5.  May  be  used,  though  plaintiff's 
action  is  on  a  sealed  instru-  action  is  on  a  sealed  instru- 
ment, ment. 

Statutoey  Recoupmext. 
AVith  these  may  be  contrasted  Statutory  Recoupment 
under  V.  C.  3299 — often  miscalled  "plea  in  the  nature  of  a 
plea  of  set-off."  This  plea  bears  no  resemblance  whatever  to 
a  set-off,  but  is  a  mere  enlarijement  of  the  common  law  right 
of  recoupment : 

1.  Arises  out  of  the  contract  sued  on,  never  out  of  a  trans- 
action de  liors  the  contract,  as  in  the  case  of  set-off.  91  Va. 
272. 

2.  Amount  need  not  be  liquidated. 

3.  May  not  only  repel  plaintiff's  claim   (as  in  common 


206  Legal    Aphorisms. 

law  recoupment),  but  defendant  may  have  recovery  over 
against  plaintiff  for  the  excess.  This  is  one  of  the  chief  pur- 
poses and  advantages  of  the  statutory  proceeding. 

4.  Must  be  specially  pleaded  (the  statute  so  declares,  V. 
C.  3299),  and  cannot  be  availed  of  under  the  general  issue. 

5.  May  be  used,  though  plaintiff's  action  is  on  a  sealed  in- 
strument. This  is  another  advantage  of  the  statutory  recoup- 
ment over  recoupment  at  common  law. 

6.  May  be  based  on  equitable,  (as  distinguished  from 
legal)  grounds. 

As  between  common  law  I'ecoupment  and  statutory  re- 
coupment, the  defendant  may  still  use  either  at  his  option, 
unless  (1)  he  desires  a  recovery  over,  or  (2)  the  action  is  on 
a  sealed  instrument.  The  statute  has  in  nowise  abridged  the 
scope  of  the  general  issue  or  the  extent  of  common  law  re- 
coupment, and  the  latter  may  still  be  set  up  under  the  general 
issue,  and  with  like  affect,  as  at  common  law.  93  Va.  678. 
The  object  of  the  statute  was  to  enlarge  the  scope  of  the  com- 
mon law  recoupment  in  the  two  particulars  already  men- 
tioned— namely,  to  permit  a  recovery  over  against  the  plain- 
tiff, and  to  allow  recoupment  against  a  sealed  instrument.  7 
Va.  L.  Reg.  332,  note. 

The  doctrine  of  recoupment  does  not  rest  on  the  nature 
of  the  right  which  a  plaintiff  has  in  the  contract  which  he 
seeks  to  enforce,  nor  on  the  fact  that  his  interest  in  it  is  the 
same  at  the  time  of  the  suit  brought  as  when  it  was  originally 
entered  into.  The  essential  elements  on  which  its  application 
depends  are  two  only.  The  first  is  that  the  damages  which  the 
defendant  seeks  to  set  off  shall  have  arisen  from  the  same  sub- 
ject matter,  or  sprung  out  of  the  same  contract  or  transaction 


Legal    Ai'iiokisms.  207 

as  that  on  which  the  plaintiff  relies  to  maintain  his  action. 
The  other  is,  that  the  claim  for  damages  shall  be  against  the 
plaintiff,  so  that  their  allowance  bv  way  of  set-off  or  defence 
to  the  contract  declared  on,  shall  operate  to  avoid  circuity  of 
action,  and  as  a  substitute  for  a  distinct  action  against  the 
plaintiff  to  recover  the  same  damages  as  those  relied  on  to 
defeat  the  action.  Still  v.  Hall,  20  Wend.  51 ;  Batterman  v. 
Pierce,  8  Hill  171 ;  Harrington  v.  Stratton,  22  Pick.  510;  91 
Mass.  42. 

The  fact  that  the  plaintiff  sues  in  tort  does  not  complicate 
the  matter.  It  is  not  more  difficult,  or  less  desirable,  in  such 
an  action,  to  have  the  whole  matter  adjusted  in  a  single  suit. 
This  method  of  avoiding  a  cross  action  can  work  no  injustice, 
nor  abridge  the  legal  rights  of  the  parties.  ISTor  does  the 
plaintiff's  position  entitle  him  to  any  special  favor  as  against 
the  defendant,  since  the  defence  which  he  endeavors  to  pre- 
clude the  defendant  from  making  is  founded  on  his  own 
alleged  fraud.  It  it  obviously  right,  that,  if  the  defendant 
has  been  damaged  by  the  plaintiff's  wrong,  the  damages 
should  be  recouped. 

This  view  is  not  only  reasonable,  but  it  is  sustained  bv  the 
authorities.  The  doctrine  of  recoupment  is  not  novel,  but  is 
as  ancient  as  the  common  law,  and  was  in  early  times  applied 
to  actions  founded  in  tort ;  as,  if  one  who  is  entitled  to  rent 
disseise  the  tenant,  in  an  assise  brought  by  the  disseisee,  he 
may  recoup  the  rent  in  damages.  A  disseisor  may  also  recoup 
all  in  damages  that  he  has  expended  upon  repairing  build- 
ings ;  also  rent  service  incurred  during  the  disseisin.  Also, 
a  guardian  in  socage  in  his  own  wrong,  shall  have  reasonable 
allowance.    Coulter's  Case,  5  Co.  30.   An  executor  in  his  o%vu 


208  Legal   Aphoeisms, 

wrong  shall  not  recoup  his  own  debt,  lb.  But  in  an  action  of 
trover  bv  the  administrator  against  him  he  may  recoup  pay- 
ments of  debts  made  by  him,  Whitehall  v.  Squire,  Carth, 
104;  ]\Iouutford  v.  Gibson,  4  East.  441.  See,  also,  Icely  v. 
Grew,  6  :N"ev.  &  Man.  467,  469,  n ;  105  Mass.  20. 

If  there  was  a  partial  failure  of  consideration,  or  decep- 
tion in  the  quality  or  value  of  it,  or  a  breach  of  warranty,  the 
defendant  niav  avail  himself  of  it,  to  reduce  the  damao-es  to 
the  worth  of  the  chattels  sold,  and  need  not  resort  to  an  action 
for  deceit,  or  upon  the  warranty.  Chitty  on  Contr.  140 ;  Ger- 
maine  v.  Burton,  3  Stark.  R.  32 ;  Barton  v.  East,  7  East.  480 ; 
Poulton  V.  Lattimore,  9  B.  &  C.  259 ;  Bayley  on  Bills  (2  Am. 
Ed.)  531  and  cases  cited.  But  he  is  not  bound  to  do  so.  *  * 
The  value  of  the  property  to  the  defendant  would  have  been 
the  true  rule  of  damaoes.    40  Mass.  286. 

See  1  Va.  L.  Reg.  541,  note. 

When  the  plaintiff's  demand  is  under  seal,  the  defendant 
cannot  rely  on  the  common  law  counter  claim  in  the  nature  of 
recoupment.    100  Va.  714. 

The  common  law  recoupment  differs  from  the  statutory 
set-off  in  three  important  particulars.  First,  recoupment  is 
confined  to  matters  arising  out  of  and  connected  with  the 
transaction  or  contract  upon  which  the  suit  was  brought ; 
secondly,  the  damages  need  not  be  liquidated;  and,  thirdly, 
if  the  defendant's  claim  exceeds  the  plaintiff's  demand,  he 
cannot  in  the  same  action  recover  the  balance.  And  it  may 
be  added  that  recoupment  at  common  law  is  a  defence  prov- 
able under  the  general  issue,  whereas  the  statutory  set-off  can 
only  be  proved  in  Virginia  when  it  is  so  described  in  the  plea, 
or  in  an  account  filed  therewith  as  to  give  the  plaintiff  notice 


Legal    Aphorisms.  209 

of  its  nature.  Code  Va.,  see.  3298 ;  Balto,  kc.  R.  Co.  v.  Jame- 
son, i;;  \y.  Va.  833;  Sterling  Organ  ("o.  v.  House,  25  W.  Va. 
G4,  G7  (as  to  notice  of  recoupment  accompanying  the  general 
issue)  ;  Britton  v.  Turner,  (5  ^^.  H.  481  (26  Am.  Dec.  713)  ; 
note  to  Van  Epps  v.  Harrison,  40  Am.  Dec.  322;  1  Va.  L. 
Reg.  541. 

Refundhstg  Boxd. 

For  money  to  be  paid  at  the  death  of  the  obligor.  31 
Gratt.  536 ;  32  Gratt.  827 ;  75  Va.  200. 

Registey. 

It  is  the  duty  of  the  party  to  examine  the  records,  say  the 
authorities,  and  whether  he  does  so  or  not,  he  will  be  affected 
Avith  notice  of  every  fact,  the  knowledge  of  which  might  there 
have  been  obtained.  When  a  person  cannot  obtain  a  title  but 
by  a  deed  which  leads  to  another  fact,  whether  by  description, 
recital  or  otherwise,  he  will  be  deemed  cognizant  of  such  fact, 
for  it  is  crassa  negligentia  that  he  sought  not  after  it.  And 
for  the  same  reason,  if  the  purchaser  has  notice  of  a  deed,  he 
is  presumed  to  have  notice  of  the  entire  contents  of  the  deed. 
33  Gratt.  191. 

Mortgage  or  deed  of  trust  securing  future  advances. 
Recordation  of  subsequent  lien  as  notice.  The  majority  of 
the  authorities  maintain,  that  registry  of  the  subsequent  lien 
is  not  notice  to  the  first  incumbrancer,  but  that  he  may  con- 
tinue the  advances  until  he  receives  actual  notice.  G  Va.  L. 
Reg.  632,  note. 

Release. 

By  one  of  two  personal  representations,  see  Executors  and 
Administrators. 


210  Legal    Apiiokisms. 

Remedy. 

So  much  of  the  law  as  affects  the  rights  and  merit  of  the 
contract,  all  that  relates  ad  litis  decisionem  is  adopted  from 
the  foreign  country ;  so  much  of  the  law  as  affects  the  remedy 
only,  all  that  relates  ad  litis  ordinationem,  is  taken  from  the 
lex  fori  of  that  country  where  the  action  is  brought.  1  Rob. 
Pr.  316.  The  form  of  action,  the  course  of  judicial  proceed- 
ings, and  the  time  when  the  action  may  be  commenced,  are 
regulated  exclusively  by  the  laws  of  the  State  wherein  the 
action  is  brought.  The  time  within  which  it  must  be  brought 
is  equally  regulated  by  those  laws.     Idem.  326. 

Release. 
A  release  of  a  debt  by  an  administrator  or  an  executor 
without  the  concurrence  of  his  co-administrator  or  co-executor 
is  good,  and  the  dissent  of  the  other,  forms  no  objection  to  its 
validity.  Executors  and  administrators  stand  on  the  same 
ground.  Murray  v.  Blatchford,  1  Wend.  583.  But  if  the 
thing  released  be  held  by  executors  in  their  own  personal 
right,  and  not  as  assets  of  the  estate,  it  seems  that  one  cannot 
release  so  as  to  bind  his  colleague.  4  Hill  503;  Dayton's 
Surrogate,  69,  70;  see,  also,  2  Minor  242,  345. 

Remittance. 

The  general  rule  of  law  is  that  the  duty  lies  on  the  debtor 
to  pay  his  debt  to  his  creditor  personally  or  to  his  authorized 
agent.  The  burden  of  proof  to  show  a  payment  of  a  debt  is 
not  sustained  therefore  by  proof  that  a  letter,  containing  the 
requisite  amount,  directed  to  the  creditor,  was  duly  deposited 
in  the  post-office.  The  debtor  must  go  further.  He  must  also 
show  that  the  creditor  authorized  this  mode  of  remittance, 
either  by  express  assent  or  direction,  or  a  usage  or  course  of 


Legal   Aphorisms.  211 

dealing  from  which  such  assent  or  direction  may  he  fairly 
inferred.  If  this  can  be  shown,  then  the  transmission  is  at 
the  risk  of  the  creditor;  otherwise  it  lies  npon  the  debtcn-. 
Peake  67,  18G;  Walter  v.  Ilaynes  Ry  Mood.  149;  2  Green. 
Ev.,  sec.  525 ;  Wakefield  v.  Lithgow,  3  Mass.  249 ;  75  Mass. 
407.  Bnt  an  agent  employed  to  collect  a  debt  and  remit  the 
proceeds  is  bound  only  to  use  ordinary  and  reasonable  skill 
and  diligence,  either  in  collecting  the  amount  or  in  sending  it 
to  his  principal,  except  so  far  as  his  discretion  is  limited  by 
positive  instructions.  Kingston  v.  Kineaid,  1  Wash.  C.  C. 
457;  6  Mete.  2G,  27;  99  Mass.  596. 

Rent. 

A  compensation  stipulated  to  be  paid  for  the  use  of  land 
and  jx^rsonal  })roperty  together,  is  not  a  sum  in  gross,  but  rent 
issuing  out  of  the  land,  l^ewton  v.  Wilson,  3  H.  &  M.  470 ; 
Michie  v.  Wood's  Ex'r,  5  Rand.  571.  The  yearly  value 
of  the  demised  premises  may  be  increased  by  the  letting  there- 
with articles  of  personal  property ;  but  the  rent  is  regarded 
as  issuing  out  of  the  land  alone.  Allen  v.  Culver,  3  Denio. 
295 ;  2  Rob.  Pr.  94.  But,  though  personalty,  may  be  rented 
with  land,  yet  the  rent  issues  out  of  the  land  and  not  out  of 
the  personalty,  so  that  if  the  personalty  be  lost  without  the 
fault  of  the  landlord,  or  for  a  cause  for  which  he  is  not  re- 
sponsible, there  seems  to  be  no  good  reason  why  the  tenant 
should  not  be  bound  for  the  whole  rent,  even  though  the  loss 
may  have  occurred  without  his  fault.  All  of  the  land  out  of 
Avhich  alone  the  rent  issues  still  remains  in  the  possession  of 
the  tenant,  and  his  obligation  to  pay  the  entire  rent  would 
seem  to  continue  also.   18  Gratt.  170. 


212  Legal    Aphorisms. 

The  acceptance  by  a  landlord  of  a  bond  for  rent  is  no  ex- 
tinguishment of  the  rent,  because  the  rent,  issuing  out  of  the 
realty,  is  a  debt  of  as  high  a  nature  as  a  specialty  claim.  1 
Chitty  PI.  (7  Am.  Ed.)  119;  4  Minor  148. 

Parol  demise  includes  demise  by  writing  not  under  seal 
as  well  as  demise  by  word  of  mouth.    3  Rob.  Pr.  375. 

Evidence,  by  receipt,  of  a  subsequent  quarter's  rent,  will 
be  considered  prima  facie  evidence  of  the  payment  for  all 
former  quarters ;  though  this  may  undoubtedly  be  contra- 
dicted by  other  evidence.     1  Pick.  337. 

Request. 

In  many  cases  the  law  implies  a  request ;  and,  in  such 
cases,  the  implication  sustains  the  averment.  Thus,  where 
one  is  comjx'llcd  to  pay  money  for  another  as  surety,  indorser, 
or  the  like,  the  obligation  to  pay,  entered  into  for  the  benefit 
and  at  the  request  of  the  principal,  is  in  law  a  request  to  pay 
the  debt.  So,  where  two  or  more  are  severally  subject  to  one 
common  debt,  and  one  pays  the  whole,  and  thereby  relieves 
his  co-surety,  as  well  as  himself;  then,  as  to  one-half,  such 
surety  pays  for  the  use  of  the  co-surety,  who  was  equally 
liable ;  and  an  equitable  obligation  therein  arises,  on  the  part 
of  the  co-surety,  to  pay  an  equal  share  of  the  common  debt 
upon  which  equitable  obligation  the  law  implies  a  promise. 
Deering  v.  Winchelsea,  2  Bos.  &  Pul.  270 ;  56  Mass.  410. 

If  a  special  request  be  unnecessarily  stated,  it  need  not  be 
proved.  1  Chitty  PI.  (7  Am.  Ed.)  364;  see,  also,  3  Rob.  Pr. 
602;  1  Gray  499. 

Res  Adjudicata. 
When  a  court  of  competent  jurisdictiou  has  given  judg- 
ment, that  the  defendant  go  without  day,  and  that  judgment 


Legal    Ai'Iiokisms.  213 

remains  unreversed,  it  is  taken  to  have  been  rightly  given, 
and  the  plaintiff  cannot  have  a  second  action  for  the  same 
cause.    7  Rob.  Pr.  181 ;  79  Va.  33S'. 

Rescission. 
Form  of  decree  rescinding.    OS  Va.  4S9. 

Res  Ipsa  Loquitur. 
100  Va.  413 ;  43  W.  Va.  GGl,  S.  C. ;  39  L.  R.  A.  490,  S. 
C.;28S.  E.  735. 

Residence. 
This  word  is  used  in  two  senses:  One,  constructive,  tech- 
nical, legal,  and  the  other  personal,  actual  habitation  of  indi- 
viduals.  3  N.  II.  123;  43  Am.  Dec.  602. 

Retraxit. 

A  retraxit  differs  from  a  non-suit  in  that  the  one  (the 
latter)  is  negative,  and  the  other  (the  former)  is  positive. 
The  non-snit  is  a  mere  dcfaidt  and  neglect  of  the  plaintiff, 
and  therefore  he  is  allowed  to  begin  his  suit  again,  upon  pay- 
ment of  costs ;  but  a  retraxit  is  an  open  and  voluntary  re- 
nunciation of  his  suit  in  court,  and  by  lhis  he  forever  loses 
his  action.    25  Gratt.  390. 

An  attorney  at  law  has  no  authority  to  enter  a  retraxit 
in  a  suit  (7  Gratt.  142)  ;  it  can  only  be  entered  by  the  plain- 
tiff in  person  in  open  court.    27  Gratt.  257. 

Xeither  will  llic  tive  dollars  be  allowed  in  the  case  of  a 
retraxit.  There,  it  i.<  true,  ilic  [ilaiiititV  abandons  his  cause; 
but  h(^  go(>s  funlicr.  and  admits  that  be  has  no  cause  of  action. 
This  entitles  the  d<'fendant   to  a    iiul^niciil,   as  beneficial  to 


214  Legal   Aphorisms. 

him  as  if  rendered  on  a  general  verdict  in  his  favor.  And  as 
no  damages  are  alloAved  in  the  latter  case,  there  is  no  reason 
for  allowing  them  in  the  former.  6  liand.  675  ;  1  Rob.  (old) 
Pr.  262. 

The  usual  and  proper  order,  where  there  is  a  retraxit  is : 
This  day  came  the  plaintiff  in  his  proper  person,  and  here  in 
open  court  acknowledges  that  he  cannot  support  his  action, 
and  voluntarily  withdraws  the  same ;  and  renounces  the  cause 
thereof ;  wherefore,  on  motion  of  the  defendant  by  his  attor- 
ney, it  is  considej-'ed  by  the  court  that  the  plaintiff  take  noth- 
ing by  his  bill,  but  for  his  false  clamor  be  in  mercy,  etc.,  and 
that  the  defendant  go  thereof  without  day,  and  recover 
against  the  plaintiff  his  costs  by  him  about  his  defence  ex- 
pended.  Rob.  Forms,  p.  96;  96  Va.  771. 

Right  to  Open  and  Conclude. 
According  to  the  well  settled  English  practice,  the  party 
who  substantially  asserts  the  affirmative  of  the  issue  has  gene- 
rally the  right  to  begin ;  and  if  the  record  contains  several 
issues,  and  the  plaintiff  holds  the  affirmative  in  any  one  of 
them  he  is  entitled  to  begin.  1  Green.  Ev.  sec.  71.  As  was 
said  by  President  Tucker  in  Steptoe  v.  Harvey,  7  Leigh  501, 
544,  "The  rules  as  to  the  right  of  opening  and  concluding  in 
the  courts  of  England  are  substantially  the  rules  which  have 
been  held  to  prevail  M-ith  us."  And  the  two  rules  of  English 
practice  al)ove  stated  may,  therefore,  be  regarded  as  settled 
rules  of  our  practice  also.  These  rules,  as  applicable  to  cases 
where  the  damages  are  liquidated,  are  thus  well  laid  down  by 
Archibald :  *  *  *  "The  party  who  has  added  the  similiter 
(supposing  there  to  be  but  one  issue)  has  a  right  to  begin  ;  or. 


Legal   Aphorisms.  215 

if  there  be  two  or  more  issues,  then,  if  the  plaintiff  have 
added  the  similiter  in  any  one  of  them,  he  has  a  right  to  l)e- 
gin ;  but  if  the  defendant  have  added  the  similiter  in  all  of 
them,  he  has  the  right  to  begin.  Another  test  is:  Suppose  no 
evidence  at  all  is  given,  who  would  be  entitled  to  the  verdict  ? 
If  the  defendant,  the  plaintiff  must  begin ;  and  if  the  plain- 
tiff, the  defendant  must  begin."  In  actions  for  unliquidated 
damages,  in  actions  on  contract,  as  well  as  of  tort,  the  plaintiff 
has  in  all  cases  the  right  to  begin.  9  Gratt.  18.  See  this 
case  for  rules  and  cases  on  the  question  of  who  is  entitled  to 
open  and  conclude. 

The  plea  of  release  and  the  plea  of  pa^anent  are  pleas  in 
confession  and  avoidance.  They  put  the  onus  prohandi  upon 
the  defendants,  and  they  give  him  the  right  to  ojxui  and 
conclude  (31  Gratt.  31S)  ;  but  this  is  the  case  only  where 
there  is  no  additional  plea  to  which  the  plaintiff  has  added 
the  similiter. 

Eights. 
Setting  up  inconsistent  rights  or  defences.    See  Estoppel. 

Sales.   Sec  Cliaiteh,  Contracts. 

The  essential  elements  which  enter  into  and  make  up  the 
contract  of  sale  are,  competent  parties  to  enter  into  a  contract, 
an  agreement  to  sell,  and  the  mutual  assent  of  the  parties  to 
the  subject  matter  of  the  sale  and  to  the  price  to  be  paid  there- 
for.  94  .Mass.  43. 

Any  M'ords  importing  a  bargain,  whereby  the  owner  of  a 
chattel  signities  his  willingness  and  consent  to  sell,  and  where- 
by another  person  shall  signify  lii>  willingness  and  consent  to 
buy  it,  tn  prescnii  tor  w  s])(ritird  [irice,  would  be  a  sale  and 


216  Legal   Aphorisms. 

transfer  of  the  right  to  the  chattel.  3  Johns.  174;  2  Rob.  Pr. 
496.  And  the  general  rule  will  not  prevail,  where  by  the  terms 
of  the  agreement,  the  title  is  to  vest  immediately  in  the  buyer, 
notwithstanding  something  remains  to  be  done  to  the  goods 
bv  the  seller  after  deliverv.  Thus,  in  Riddle  v.  Varnum,  20 
Pick.  28'0,  it  was  held  that  the  jury,  where  there  was  evidence 
of  such  intention,  might  infer  a  delivery  to  the  buyer  suffi- 
cient to  vest  the  title,  although  something  remained  to  be 
done  by  the  seller ;  while  the  general  doctrine  above  stated,  in 
cases  where  there  is  no  evidence  to  complete  the  sale  and  pass 
the  title,  is  fully  affirmed.  And,  in  Turley  v.  Bates,  2  H.  & 
C,  200,  it  is  said  that  the  court  must  look  to  the  intention  as 
drawn  from  the  terms  of  the  contract,  in  order  to  determine 
whether  title  to  the  property  immediately  passed.  Young  v. 
Matthews,  L.  R.,  2  C.  P.  127;  Story  on  Sales,  sec.  298a;  111 
Mass.  15. 

As  to  certainty  required  in  designating  quantity.  See 
Contracts. 

Implied  warranty  on  the  sale  of  a  chattel.  2  Va.  L.  Reg. 
463. 

Sale  of  goods  to  which  something  remains  to  be  done.  2 
Va.  L.  Reg.  57. 

Conditional  sales,  risk  of  property,  negotiable  paper.  3 
Va.  L.  Reg.  898. 

Inadequacy  of  consideration  is  always  a  material  circum- 
stance to  be  considered,  along  with  other  circumstances  exist- 
ing in  a  case,  conducing  to  show  that  it  would  be  inequitable 
to  force  the  specific  execution  of  a  contract ;  but  where  there 
are  no  such  other  circumstances,  but  the  inadequacy  of  con- 
sideration is  such  as  to  shock  the  moral  sense  of  mankind,  it 


Legal   Apjiokisms.  217 

is  in  itself  evidence  of  fraud  and  sufficient  to  prevent  the 
execution  of  the  contract.  But  here  the  inadequacy  of  the 
consideration  *  *  *  ^^  stands  solitary  and  alone  as  the 
ground  on  which  relief  is  claimed,  from  the  obligation  to  per- 
form the  contract.  It  is  not  pretended  that  any  fiduciary  rela- 
tion existed  between  the  contracting  parties  at  the  time  of 
the  contract  or  at  any  other  time ;  it  is  not  pretended  that  any 
fraud  or  influence,  undue  or  (otherwise,  was  practiced  by  the 
vendee  on  the  vendor  to  induce  him  to  enter  into  the  con- 
tract; it  is  not  pretended  that  it  was  made  under  any  mis- 
representation or  mistake ;  nor  is  it  pretended  that  the  ven- 
dor was  not  a  man  of  perfectly  sane  mind,  capable  of  making 
contracts  and  taking  good  care  of  his  own  interests.  21  Gratt. 
81. 

There  is  a  class  of  cases  to  which  Pickard  v.  Sears  (33 
Eng.  C.  L.  R.  115)  belongs,  in  which  it  has  been  held  that 
where  a  person  entitled  to  personal  property  (which  may  pass 
by  sale  and  delivery  without  writing)  stands  by  and  makes 
no  objection  to  the  sale  of  it  to  another,  the  fact  may  be  left 
to  the  jury  as  evidence  tending  to  show  that  he  sanctioned  the 
sale,  and  ceased  to  be  the  owner.    10  Gratt.  ."iTl. 

Where  No  Place  of  Delivery  is  Specified. — In  Lee  Large 
V.  Kickert,  5  Wend.  187,  there  was  a  Avrittcu  contract  to  de- 
liver certain  jiortablc  articles  to  the  })laintifl',  but  no  place  of 
delivery  was  specified.  It  was  held  that,  by  construction  of 
law,  the  place  of  delivery  was  the  residence  of  the  plaintiff, 
and  that  evidence  was  not  admissible  to  prove  a  eotemjwran- 
eous  agreement  fixing  a  different  place  of  delivery.  The 
Court  said:  The  written  contract  of  the  parties,  therefore, 
aecordinti;  to  the  established  rules  of  cunstnict idU,  having  set- 


21S  Legal    Aphorisms. 

tied  their  rights  and  duties  as  to  the  place  at  which  these  arti- 
cles were  to  be  delivered,  it  was  inipro|5er  to  admit  parol  evi- 
dence of  their  declarations  before  or  at  the  time  of  the  giving 
of  the  receipt,  to  show  that  a  different  place  had  been  agreed 
upon.  The  written  contract  was  the  only  legal  evidence  as  to 
the  intentions  of  the  parties  up  to  the  time  it  was  executed. 
All  previous  arrangements  were  merged  in  that.  A  written 
contract  cannot  be  varied  by  parol,  and  where  the  legal  con- 
struction and  cifect  of  an  instrument  are  well  settled,  it  is 
varying  the  instrument  to  show  that  the  parties  intended 
something  else,  as  much  as  it  would  be  to  prove  that  the  terms 
used  were  not  in  accordance  with  the  previous  agreement.  18 
Gratt.  212. 

Efforts  made  after  delivery  to  satisfy  the  purchaser.    70 
K  E.  429 ;    111  Mass.  364. 

Scire  Facias. 
A  scire  facias  seeks,  not  a  new  judgment,  on  which  execu- 
tion is  to  issue,  but  an  award  of  execution  on  the  judgment 
already  rendered.  The  execution  issues  on  that  judgment; 
and  the  award  of  it  on  the  scire  facias  is  but  the  authority  to 
issue  it.  The  judgment  awarding  it  is  but  the  authority  to 
issue  it.  The  judgment  awarding  it,  after  reciting  the  scire 
facias,  which  recites  the  original  judgment,  is  "that  A.  B. 
(the  creditor)  have  his  execution  against  C.  D.  (the  debtor) 
of  the  debt  aforesaid,  according  to  the  force,  form  and  effect 
of  the  said  recovery.  Tidd's  Append.  338.  The  execution 
which  issues  is  on  the  original  judgment.  It  is  to  be  accord- 
ing to  the  force,  form  and  effect  of  the  recovery— that  is,  the 
original  judgment.    2  Gratt.  64. 


Legal   Aphorisms.  219 

Upon  a  scire  facias  to  revive  a  suit  against  the  personal 
I'cprcsentative,  the  scirr  facias  being  returned  cxeeuted  and 
the  personal  representative  failing  to  apjx^ar  and  show  cause 
against  the  revival  iherebv  soui-ht,  it  was  ordered  that  the 
suit  stand  and  be  revived  against  the  personal  representative, 
and  be  in  all  things  in  the  same  plight  and  condition  as  it  was 
at  the  time  of  the  death  of  his  decedent.    10  Leigh  589. 

Seal. 

The  defence  that  a  bond  was  originally  without  considera- 
tion cannot  be  made  to  a  specialty  either  at  common  law  or 
under  the  statute  (V.  C.  3299).  The  seal  imports  a  consider- 
ation, and  a  party  cannot  avoid  his  solemn  obligation  under 
seal  upon  the  ground  of  a  want  of  consideration.  That  in- 
quiry is  precluded  by  the  very  nature  of  the  instrument.  A 
seal  (as  is  -svell  said  in  1  Smith's  L.  C.  636)  properly  speak- 
ing renders  a  consideration  superfluous,  and  binds  the  parties 
by  force  of  the  natural  presumption  that  an  instrument  exe- 
cuted with  so  much  deliberation  and  solemnity  is  founded 
upon  some  sufficient  cause.  Xor  can  such  defence  be  made 
under  the  statute.  23  Gratt.  751.  Sometimes  we  see  it  laid 
down  that  "the  seal  imports  a  consideration  as  much  as  if  it 
was  expressed  in  so  many  words."  But  the  expression  is 
thought  not  to  be  entirely  accurate.  Xo  consideration  being 
necessary  to  give  validity  to  a  deed,  the  law  does  not  from  the 
fact  of  execution,  make  anv  inference  one  wav  nr  tli(>  other  in 
reference  to  a  consideration.  Walker  v.  Walker.  13  Tredell 
335;  2  Rob.  Pr.  31. 

Where  it  appears  that  the  grantor  intended  to  execute  a 
deed  and  the  seal  is  omitted  by  accident,  mistake  or  inadver- 


220  Legal   Aphoeisms. 

teiice,  a  court  of  equity  will  regard  the  iustrumeut  as  a  deed, 
and  supply  a  seal.  1  Pom.  Eq.  Jur.  sec.  383 ;  5  Johns.  Chy. 
224;  Bernard's  Tp.  (Inhabitants)  v.  Stebbins,  109  U.  S. 
341;  27  L.  Ed.  956;  24  S.  Ca.  595;  13  S.  E.  (S.  C.)  619, 
624.     Se  Deeds. 

Sealed  Instrument.    8ee  Seal. 
Instruments  under  seal  in  Virginia.    1  Va.  L.  R.  622. 

Secueity  foe  Costs. 
Asking  for  without  or  before  pleading  does  not  present 
office  judgment  from  becoming  final.   50  S.  E.  (W.  Va.)  746. 
West  Virginia  statute  the  same  as  the  Virginia  statute. — J. 
W.  F. 

Seduction. 
JSTecessity  for  alleging  that  servant  was  a  daughter.    5  Va. 
I.  Reg.  51. 

Seaech  Waeeant. 
Forms  of  declaration  against  a  justice  for  maliciously  is- 
suing a  search  warrant.    G  Munf.  27. 

Seizuee. 
By  the  seizure  of  a  thing,  said  the  Supreme  Court  (of  the 
U.  S.)  in  Pelham  v.  Rose,  9  Wall.  106,  is  meant  the  taking  of 
a  thing  into  possession,  the  manner  of  which,  and  whether 
actual  or  constructive,  depending  upon  the  nature  of  the  thing 
seized.  As  applied  to  subjects  capable  of  manual  delivery, 
the  term  means  capture,  the  physical  taking  into  custody.  28 
Gratt.  25. 


Legal    Ai'uoiasMfJ.  221 

Set-Ofp-s.    See  Damages,  Becoupmenf. 

The  course  of  decision  in  this  State  shows,  that  the  statute 
of  set-off  has  been  lil)crall_v  construed  with  a  view  to  its 
obvious  policy,  which  is  to  prevent  nniltiplicitv  of  suits,  and, 
as  far  as  conveniently  can  be  done,  to  effectuate  in  one  action 
complete  justice  between  the  parties.  IS  Gratt.  720 ;  22 
Gratt.  605. 

In  Waterman  on  Set-Off,  sec.  286,  it  is  said:  ''It  is  not 
necessary,  in  order  to  constitute  a  valid  set-off,  that  a  price 
should  be  agreed  upon  for  an  article  sold  and  delivered. 
Therefore,  a  demand  for  the  value  of  corn  delivered  mav  be 
set-off,  though  the  price  of  the  corn  had  not  been  agreed  on. 
The  fact  that  the  price  had  not  been  agreed  on  did  not  make 
it  a  case  of  unliquidated  damages,  within  the  sense  in  which 
these  terms  have  been  used  in  the  English  statutes.  The 
defendant's  demand  was  for  monev,  the  value  of  the  corn. 
For  its  recovery  indebitatus  assumpsit  could  be  maintained, 
and  this  furnishes  a  test  for  its  allowance  as  a  set-off,  citing 
authorities.    105  Va.  103. 

When  the  items  of  an  account  filed  with  a  plea  of  pay- 
ment, or  under  a  plea  under  which  payment  may  be  proved, 
as  nil  debet,  as  to  give  the  plaintiff  notice  of  their  character, 
the  defendant  may  show  either  payment  or  set-offs.  If  the 
nature  of  the  item  be  distinctly  stated  the  statute  is  complied 
with,  though  the  'item  be  wrongly  denominated  (103  Va. 
286),  and  in  such  case,  if  the  payment  is  proved,  the  statute 
of  limitations  could  have  no  application.  The  payment  only 
reduced  the  debt  pro  tanto.    5  Gratt.  475, 

Set-off  of  one  judgment  against  another.  6  Va.  L.  Reg. 
122 


2-2  Legal    Aphokisms. 

Equitable  Set-Off. —Where  the  defendant  sets  up  equit- 
able set-offs  the  plaintiff  will  be  allowed  to  rebut  the  claim  by 
any  evidence  which  would  be  considered  appropriate,  had  the 
defendant  elected  to  proceed  by  bill  in  chancery.  2  Gratt.  132. 

What  plea  must  show.    1  Va.  L.  Keg.  540. 

Equitable  defence  cannot  be  made  by  surety.  100  Va. 
709 ;  but  see  8  Va.  L.  Eeg.  655. 

Shekiff. 

When  liable  for  the  tortious  acts  of  his  deputy.  1  Chitty 
PI.  (7  Am.  Ed.)  93  ;  17  Mass.  246.  And  trespass  (or  trespass 
on  the  case  in  Virginia)  the  proper  action.    Idem. 

Action  lies  for  money  collected  by  him  without  demand 
on  him  (5  Hill  398),  and  assumpsit  is  the  proper  form  of 
action.      7  Hill  200,  but  see  execution. 

Sidewalks.    See  Streets. 

Specific  Performance.  See  Sales. 
The  general  rule  is  that  there  €an  be  no  decree  for  specific 
performance,  except  between  the  parties  themselves,  or  those 
claiming  under  them  in  privity  of  estate,  or  of  representation, 
or  of  title;  for  a  contract  can  only  be  enforced  between  the 
parties  themselves,  or  their  representatives  in  interest.  16 
Gratt.  113.  An  assignee  of  the  contract  may  maintain  suit 
for  specific  performance.  8  Gush.  575;  154  Mass.  570;  23 
K  E.  779. , 

Parties. — The  general  doctrine,  as  supported  by  the 
weight  of  the  American  authorities,  is  that  all  persons  who 
are  interested  in  the  enforcement  of  the  contract  must  be,  and 
all  those  directly  and  specifically  interested  in  the  subject 


LEciAr,    Ai'iroRiSMs.  223 

mattpr  may  be  joined  as  parties  to  the  suit  for  the  specific 
performance.     Pom.  on  Cont.,  sec.  483;  J)T  Va.  346. 

Although  in  some  cases  of  contract  for  the  purchase  of 
real  estate  a  party  may  have  an  adequate  remedy  at  law,  yet 
he  is  not  bound  to  resort  to  it,  but  may,  at  his  election,  sue  in 
equity.  Where  such  a  contract  is  unobjectionable,  it  is  as 
much,  of  course,  for  a  court  of  equity  to  decree  a  specific  per- 
formance, as  it  is  for  a  court  of  law  to  give  damages  for  the 
breach  of  the  contract.  9  Ves.  R.  605;  13  Gratt.  411;  21 
Gratt.  30,  SO;  76  Va.  835.  This  rule  is  true  only  where  the 
contract  is  in  its  nature  and  circumstances  free  from  objec- 
tions.  31  Gratt.  388 ;  Hoover  v.  Buck,  21  S.  E.  475. 

Where  the  contract  between  the  parties  is  different  from 
the  contract  set  up  in  the  bill,  and  the  true  contract  is  proved 
by  the  defendant,  the  court  ought  generally  not  to  dismiss  the 
bill,  but  decree  specific  performance  of  the  contract  as  proved, 
where  it  will  produce  neither  hardship  nor  injustice  to  the 
parties ;  and  it  seems  this,  too,  against  the  claim  of  the  plain- 
tiff to  have  his  bill  dismissed.    21  Gratt.  31. 

On  a  reference  as  to  title  in  a  suit  for  specific  perform- 
ance the  inquiry  generally  is,  Whether  the  vendor  can,  not 
whether  he  could  make  a  title  at  the  time  of  entering  into  the 
agreement.  If  a  good  title  can  be  shown  at  any  time  before 
the  master's  report,  and  even  after  the  report,  if  the  vendor 
can  satisfy  the  court  that  he  can  make  a  good  title  by  clearing 
up  the  objections  reported  by  the  master,  the  court  will  gen- 
erally make  a  decree  in  his  favor.   13  Gratt.  213. 

There  is  a  well  settled  distinction,  in  regard  to  the  admis- 
sion of  parol  evidence,  between  seeking  and  resisting  the 
specific  performance  of  an  agreement.     A  suit  for  specific 


224  Legal    Aphokisms. 

performance  is  addressed  to  the  sound  discretion  of  the  court, 
upon  all  the  circumstances.  And  any  evidence  which  shows 
that  it  would  be  inequitable  to  enforce  the  agreement  as  stated 
in  the  bill,  is  admissible  as  matter  of  defence.    11  Gratt.  335. 

Specific  performance  of  a  contract  for  land  within  the 
jurisdiction  of  the  court  will  not  be  decreed  against  an  absent 
non-resident.  3  Cush,  578";  Dan.  Ch.  PL  and  Pr.  (6'  Am. 
Ed.)  629,  note  a. 

Suit  for  is  transitory.  10  Va.  L.  Reg.  283 ;  but,  see  76 
Va.  594. 

Stale  Demands. 

Claims  are  considered  as  stale  in  equity,  "only  when  gross 
laches  is  shown,  and  unexplained  acquiescence  in  the  opera- 
tion of  an  adverse  right."   9  Otto.  201 ;  78  Va.  147. 

Stake  Decisis.    9  Va.  L.  Peg.  574. 

Statutes.   See  Punctuation. 

In  construing  agreements  as  well  as  statutes,  the  court  is 
bound  to  put  on  them  that  meaning  which  is  the  plain,  clear 
and  obvious  result  of  the  language  used.  2  Pob.  Pr.  44. 
When  the  Legislature  has  used  words  of  a  plain  and  positive 
import  the  courts  cannot  put  upon  them  a  construction  which 
amounts  to  holding  the  Legislature  does  not  mean  what  it  has 
actually  expressed.  28  Gratt.  401;  31  Gratt.  286;  6  Gratt. 
507.  Courts  of  law  have,  in  many  instances,  introduced  great 
refinements  in  the  construction  of  statutes ;  and  in  some  in- 
stances, judges  of  great  celebrity  have  deplored  the  first  aber- 
ration from  the  plain  and  natural  meaning  of  the  words  of 
Statutes.  Spencer,  C.  J.,  in  Troup  v.  Smith,  20  Johns.  R.  44. 

The  law  does  not  favor  a  repeal  by  implication ;   nor  is  it 


Legal   Aphorisms.  22 


a 


to  he  allowed  uuloss  the  repugnancy  be  quite  plain;  it  has 
ever  been  eunlined  to  repealing  as  little  as  possible  of  the  pre- 
ceding statute.  Although  two  acts  are  seemingly  repugnant; 
yet  they  shall,  if  possible,  have  such  construction  that  the 
latter  may  not  be  a  repeal  of  the  former  by  implication.  41 
.Mass.  207. 

The  Legislature  has  the  power  to  make  a  retrospective  en- 
actment changing  the  common  law  rules  of  evidence,  prescrib- 
ing the  modes  of  proof  and  directing  who  may  and  may  not 
be  competent  witnesses.    80  Mass.  459. 

The  rule  is  that  no  retroactive  effect  wall  be  given  to  a 
statute  unless  the  intention  of  the  law-makers  to  give  it  that 
effect  is  expressed  in  terms,  or  arises  by  necessary  implication 
from  the  nature  of  its  pi-ovisions,  and  this  is  specifically  true 
when  rights  are  thereby  taken  away  or  restricted  in  their  as- 
sertion.   110  :Mass.  240. 

The  rules  of  law  are  not  generally  subject  to  be  altered  by 
statutory  provisions  introduced  for  a  different  object.  2 
Minor  124. 

It  has  been  held  in  Kentucky  that  the  Enolish  decisions 
were  not  obligatory  upon  them  in  the  construction  of  their 
own  statutes,  although  similar  in  their  provisions  to  the  Eng- 
lish statutes.  Hardin's  R.  301;  1  Peters  363;  6  Leigh  00, 
100. 

Roll  of  enrolled  statute  takes  precedence  over  printed 
statute.     1  Va.  L.  Reg.  G82. 

St.vtutes  ok  Fraud. 
lias  no  application  to  contracts  fully  executed  by  one  or 
both  parties.    13  Rick.  5. 


226  Legal   Aphorisms. 

Whether  a  contract  drawn  up  and  signed  by  an  auctioneer 
making  sale  of  real  estate  will  bind  the  vendor.  21  Gratt.  681 ; 
7  Va.  L.  Reg.  349;  GO  K  E.  701. 

Memorandum. — jSi^othing  more  is  necessary  than  this,  that 
when  one  man  makes  an  offer,  there  must  be  a  fair  under- 
standing on  the  jiart  of  each  as  to  what  is  to  be  the  purchase 
money,  and  how  it  is  to  be  paid,  as  also  a  reasonable  descrip- 
tion of  the  subject  of  the  bargain.  32  Gratt.  647.  See,  also, 
92  Va.  524. 

Streets. 
Streets  include  sidewalks.    07  Va.  724. 
A  person  upon  a  public  street  is  neither  a  trespasser  or  a 
licensee.    100  Va.  356. 

Substitution,    See  Subrogation. 

Subrogation.   See  Surety. 

In  enforcing  the  principle  of  substitution  courts  of  equity 
look  not  to  the  form,  but  to  the  essence  of  the  transaction. 
They  consider  the  doctrine  not  as  one  founded  in  contract, 
but  as  the  offspring  of  natural  justice;  and  they  administer 
it  so  as  to  attain  real  essential  justice,  without  any  regard  to 
technicality.  Hence  a  court  of  equity  considers  it  a  matter  of 
no  sort  of  consequence  whether  a  man  is  bound  for  the  debt 
of  another  jointly  with  that  other,  or  separately  from  him.  It 
is  not  necessary  that  one  should  be  principal  and  the  other 
surety  in  the  same  l)ond.  The  surety  who  gives  a  separate 
bond  from  the  principal  is  regarded  as  standing  as  much  in 
the  relation  of  a  surety  as  if  the  bond  were  joint.  4  Rand. 
438;  2  Rob.  (old)  Pr.  137;  98' Va.  130. 


LecjaIv    Ai'jiouisms.  .227 

A  purchaser  of  land  who  pays  a  debt  secured  by  lien  on 
the  land  entitled  to  subrogation.  Subrogation,  as  a  matter  of 
right,  independently  of  contract,  takes  place  for  the  benefit  of 
a  purchaser  who  has  extinguished  an  incumbrance  upon  the 
estate  which  he  has  purchased.  30  Gratt.  G32.  It  will  be  ap- 
plied whenever  a  person  has  been  compelled  to  pay  the  debt 
of  a  third  person  in  order  to  protect  his  own  rights  or  save  his 
own  proixrty.     GO  X.  Y.  363;  IG  W.  Va.  791  (9.S^  Va.  130). 

A  sale  ordinarily  implies  that  the  vendee  shall  have  a 
clear  and  unincumbered  title;  and  unless  it  is  otherwise 
agreed,  a  mortgage,  judgment  or  other  incumbrance  should 
be  discharged  by  the  vendor.  In  such  case  the  vendor  is  pri- 
marily liable  for  the  incumbrance;  and  if  he  fails  to  dis- 
charge it,  and  the  vendee  is  compelled  to  satisfy  it  in  order 
to  protect  the  property,  he  will  be  subrogated  to  the  incum- 
brance so  paid  off  by  him.  The  rule  is  stated  and  illustrated 
by  an  application  to  the  facts  in  the  case  of  Gatewood  v.  Gate- 
wood,  75  Va.  407,  thus :  Where  the  party  making  the  pay- 
ment occupies  the  position  of  surety  for  the  debt,  or  is  in 
some  way  personally  bound  for  its  payment,  such  person  may 
in  equity  require  an  assignment  or  transfer,  not  only  of  the 
mortgage  itself,  but  of  all  the  securities  held  by  the  creditor 
for  his  protection  and  indemnity;  although  no  such  assign- 
ment or  transfer  is  actually  made,  a  court  of  equity  will  treat 
it  as  done.  2  S.  E.  (W.  Va.)  337 ;  100  Va.  432 ;  04  Va.  752 : 
OG  Va.  411.  So,  also,  where  the  purchaser  assumes  the  pay- 
ment of  the  secured  debt.   33  Gratt.  582;  OG  Va.  G08. 

Sunday. 
Dies  non  jiindicus.    12  C.  C.  A.  462,  and  note. 


228-  Legal    Aphorisms. 

Where  verdict,  but  no  judgment  on  Sunday,  6  Va.  L. 
Eeg.  691. 

Contracts  made  on  Sunday  arc  not  void  at  common  law. 
Chitty  on  Cont.  374;  Clark  on  Cont.  393;  9  Coke  66b;  3 
Burr  1595,  1597;  6  Va.  L.  Eeg.  692.  A  note  given  on  Sun- 
day is  not  void.    10  Mass.  312. 

SURCHAKOE  AND  FALSIFY, 

To  surcharge  is  to  show  an  item  of  proper  credit  omitted ; 
to  falsify,  to  prove  a  wrongful  charge  is  inserted.  4  Minor 
1362, 

Surety.    See  Principal  and  Surety,  Subrogation. 

There  are  three  kinds  of  contract  of  suretyship,  between 
which  it  seems  important  to  distinguish:  (1)  Those  in  which 
there  is  an  agreement  to  constitute,  for  a  particular  purpose, 
the  relation  of  principal  and  surety,  to  which  agreement  the 
creditor  thereby  secured  is  a  party;  (2)  Those  in  which  there 
is  a  similar  agreement,  between  the  principal  and  surety  only, 
to  which  the  creditor  is  a  stranger;  and  (3)  Those  in  which, 
without  any  such  contract  of  suretyship,  there  is  a  primary 
and  secondary  liability  of  two  persons  for  one  and  the  same 
debt,  the  debt  being,  as  between  the  two,  that  of  one  of  those 
persons  only,  and  not  equally  of  both,  so  that  the  other,  if  he 
should  be  compelled  to  pay  it,  would  be  entitled  to  reimburse- 
ment from  the  person  by  whom  (as  between  the  two)  it  ought 
to  have  been  paid.    24  A.  &  E.  Ency.  of  Law  (1st  Ed.)  717. 

The  sureties  right  of  action  is  on  the  implied  assumpsit, 
or  obligation  which  the  law  raises  from  the  payment  by  one 
contractor  of  what  his  co-contractor  should  have  paid,  and 
therefore  is  governed  by  the  terms  which  the  law  implies  for 


Lix.Ai-    .VriioKisM.s.  229 

the  sake  of  justice  between  the  parties  (t»0  Va.  '2'^H),  and  the 
limitation  is  three  years  (99  Va.  2r)5)  ;  but  if  the  excess  paid 
is  barred  hy  limitations  the  whole  of  that  part  ))aid  not  ex- 
ceeding hi>  proportion  niav  ho  recovered,  when  the  principal 
has  paid  the  residue  within  the  statutory  liiuit.  1  Rob.  Pr. 
492;  y  Elinor  191.  And  it  has  been  held  iu  Massachusetts,  in 
an  action  of  assumpsit,  that  the  surety  is  entitled  to  recover 
from  his  co-surety  only  an  aliquot  part  without  regard  to  the 
solvency  of  the  other  sureties.     36  Mass.  2(55. 

Where  one  of  the  two  co-sureties  buys  in  property  of  the 
J>rincipal,  or  acquires  benefits  or  advantages,  it  is  for  the 
joint  benefit  of  co-surety,  at  least  to  the  extent  of  apportion- 
ment between  them.   T  X.  E.  578 ;  29  Gratt.  144. 

A  surety's  obligation  is  not  conditional,  but  abscdute.  The 
creditor  may  sue  him  alone,  if  the  obligation  is  several,  or 
joint  and  several,  and  may  levy  execution  upon  the  property 
of  the  surety,  instead  of  the  principal,  at  his  pleasure,  and 
the  surety  has  no  equity  against  the  creditor  that  would  en- 
title him  to  a  stav  of  execution.   25  Gratt.  5G3  ;  Idem.  230. 

A  surety  is  an  insurer  of  the  debt ;  a  guarantor  is  the  in- 
surer of  the  solvency  of  the  debtor.  52  P^nn.  525  ;  18  Gratt. 
770. 

The  surety  is  released  in  equity  when  by  a  legal  and  bind- 
ing contract  with  the  principal,  the  time  of  payment  is  ex- 
tended, or  there  is  a  variation  in  contract.  C  Leigh  555;  10 
Gratt.  253;  91  Va.  134;  98  Va.  35. 

Where  the  principal  and  surety  are  b(»und  jointly  and 
severally  iu  a  bond,  although  th(>re  is  no  exj)ress  admission  on 
the  face  of  the  instrument  that  all  are  priueii)als,  yet  the 
suretv  cannot  aver  bv  ideadino'  in  an  action  at  law  that  he  is  a 

»  t        I  ~ 


230  Legal    Apiioeisms. 

surety  only,  but  where  it  appears  on  the  face  of  the  bond  that 
the  surety  was  surety  only,  the  defence  may  be  made  at  law. 
10  Pet.  265 ;  7  Johns.  337.  So,  also,  the  defence  may  be  made 
at  law  in  action  on  unsealed  instruments.  96  Va.  728  ;  93  Va. 
510;  84  Va.  772. 

Contribution  from  co-surety.    6  Va.  L.  Reg.  838";  4  Idem. 
477. 

Surplusage. 
An  allegation  that  is  material  can  never  be  surplusage. 
Surplusage  is  something  that  is  altogether  foreign  and  inap- 
plicable, is  that  which  does  not  help  at  all,  as  if  you  were  to 
state  that  a  man  had  a  blue  coat  on  and  did  a  certain  thing; 
but  it  is  not  surplusage  to  say  that  the  defendant  knocked  the 
plaintiff  down  and  also  tore  his  clothes,  and  also  put  his  eyes 
out.  3  Rob.  Pr.  517.  If  the  entire  averment  can  be  expunged 
without  affecting  the  right  to  recover,  it  nee^d  not  be  proved ; 
but  if  it  cannot  be  thus  stricken  from  the  declaration  without 
getting  rid  of  a  part  essential  to  the  cause  of  action,  then, 
though  the  averment  be  more  particular  than  it  need  have 
been,  the  whole  must  be  proved,  or  the  plaintiff  cannot  re- 
cover.   1  Saund.  PI.  and  Ev.  416,  417;  7  Leigh  668;  Hogg's 

PI.  &r.  111. 

Surplusage  will  not  vitiate  the  pleadings.  21  Gratt.  104; 
3  Rob.  Pr.  516. 

An  averment  of  scienter  is  surplusage  when  the  declara- 
tion is  good  without  it.     32  Gratt.  519. 

Taxes. 

It  has  been  held  in  a  number  of  cases,  that  an  officer 
fharffcd  with  the  collection  of  monevs  due  individuals  or  the 


Lfxjai.    Aphorisms.  231 

gov(  riimeiit,  ^vho  i)nys  the  taxes  or  debt  of  another  person, 
cnniidt  maintain  an  aetion  to  recover  the  same  in  the  absence 
(if  a  prior  request,  or  subsequent  promise.  27  Gratt.  748. 
But,  see  1  11.  &  M.  453. 

Tenant  by  the  Curtesy. 
See  opinion  of  Anderson,  J.,  in  27  Gratt.  602. 

Tender. 

In  Jones  v.  Cliff,  1  C.  &  M.  539,  it  was  said  by  Lord 
Lvndhiirst,  a  party  can  only  be  obliged  to  make  a  tender 
where  by  making  it  he  could  obtain  possession  of  the  goods. 
And  Jones  v.  Barkley,  2  Doug.  684,  shows  that  where  a  party 
is  ready  to  do  what  is  to  be  done  by  him,  and  the  performance 
is  prevented  by  the  act  of  the  other  party,  it  is  not  necessary 
that  a  strict  tender  should  be  proved.  And  in  Gilmore  v. 
Holt,  4  Pick.  258,  the  Supreme  Court  of  Massachusetts  thus 
laid  down  the  rule :  If  a  person  who  is  bound  to  pay  money 
be  prevented  from  making  a  tender  by  any  contrivance  or 
evasion  of  the  other  party,  it  will  be  equivalent  to  a  tender  or 
a  sufficient  excuse  for  uot  making  it.  These  cases  proceed 
u]xin  the  general  principle  that  he  who  prevents  the  perform- 
ance of  an  act,  shall  not  be  permitted  to  avail  himself  of  the 
non-performance  occasioned  by  his  own  conduct.  21  Gratt. 
634. 

■  Where  money  is  paid  into  court  cjencraUy  the  rule  is,  that 
payment  into  court  admits  \\w  cause  or  causes  of  action  stated 
in  the  declaration,  to  the  amount  paid  in,  but  nothing  more. 
Bevond  that  amount  the  defendant  mav  make  his  defence.  2 
Wciid.  432. 

The  money  must   accompany  the  plea  of  tender  and  be 


232  Legal    Aphorisms. 

paid  into  court,  and  if  not  so  paid  in  the  plaintiff  should  de- 
mur to  the  plea.    3  Call  247. 

Time. 

In  contracts  appointing  some  acts  to  be  done  on  a  given 
day,  there  is  no  inflexible  rule  that  the  party  is  to  have  until 
sun-down  of  the  day,  to  perforin  his  contract.  That  time  is 
allowed,  when  it  appears  from  the  circumstances  of  the  case, 
to  be  most  convenient  to  both  parties ;  as  if  a  sum  of  money  is 
to  be  paid,  the  rule  is  adopted  to  avoid  the  inconvenience  of 
one  party  being  bound  to  wait  the  whole  day  for  the  other. 
But  even  in  that  case,  payment  must  be  made  in  time  to  count 
the  money  before  sun-down.  So  that  if  a  very  large  sum  were 
to  be  paid,  the  pa_)Tnent  should  be  made  early  in  the  day.  5 
Co.  114.  The  true  rule  is,  that  the  stipulated  act  is  to  be  per- 
formed at  that  period  of  the  day,  which  may  appear,  from  the 
circumstances  of  the  case,  to  be  most  proper  for  attaining  the 
object  of  the  contract,  as,  in  case  of  a  contract  to  pay  money 
upon  the  transfer  of  stock,  the  party  must  pay  within  the 
hours,  when  the  transfer  of  the  stock  can  be  made,  according 
to  the  rules  of  the  institution,  which  can  alone  complete  the 
transfer.    1  Esp.  X.  P.  160;  3  Kand.  555. 

"From"  or  "after"  a  given  event,  ''until."  6  Va.  L.  Reg. 
576. 

Title.  See  Tcndor  and  Vendee. 
A  title  can  only  pass  or  be  acquired  by  a  grant,  or  deed, 
or  devise,  or  descent,  or  by  an  adverse  holding.  He  who 
enters  under  a  parol  gift,  enters  with  the  knowledge  that  such 
gift  vests  no  title  to  real  estate  in  hinh  10  Gratt.  315 ;  31 
Gratt.  616.    And  it  is  said  in  16  Gratt.  210,  Wherever  the  act 


Legal    Afmiokisms.  233 

of  limitations  would  be  a  bar  to  an  action  for  property,  it 
gives  to  the  defendant  such  a  title  to  the  property  as  enables 
him  to  maintain  his  defence  und(>r  the  general  issue,  and 
would  even  enable  him  to  maintain  his  defence  under  the 
general  issue,  and  woidd  even  enable  him  to  maintain  an 
action  for  the  property.  ]  Rob.  (new)  Pr.  500,  citing  3  II.  ^ 
M.  57;  4  Id.  139;  4  Munf.  301  ;  Id.  504;  3  Cr.  358;  11 
Wheat.  371  ;  IG  Gratt.  240.  All  of  these  cases  involved  the 
title  to  personal  projx^rty,  but  the  same  rule  applies  to  real 
estate.  4  Gratt  1211;  27  Gratt  430;  28  Gratt  383;  (i  Va.  L. 
Reg.  712;  and  in  equity,  6  :\Iunf.  352,  and  Mr.  M.  P.  Burks 
etc.,  see  page  234.  In  ejectment  the  defence  by  the  terms 
of  the  statute  (V.  C  2734)  it  providing  that  th(>  defendant 
shall  plead  the  general  issue  only;  and  he  may  give 
in  evidence  any  matter  which,  if  pleaded  in  the  former  writ 
of  right,  would  bar  the  action  of  the  plaintiff,  and  in  the  writ 
of  right  the  plea  of  limitations  created  a  bar.  14  Puffendorif 
Abr.  328;  1  Rob.  (old)  Pr.  464.  And  it  should  be  borne  in 
mind  that  it  has  been  held  by  high  authority'  that  where  a 
seal  to  the  deed  of  convevance  is  omitted  bv  mistake,  accident 
or  inadvertance,  a  court  of  equity  will,  as  between  the  parties 
and  their  privies  in  estate,  supply  the  omission  of  the  seal  and 
make  that  a  deed  which  was  intended  to  be  a  deed.  109  U.  S. 
349;  24  Vt.  181;  15  R.  I.  195;  34  S.  Ca.  410,  S.  C. ;  13  S. 
E.  624. 

No  matter  how  destitute  of  title  the  landlord  may  be.  or 
how  clear  the  title  of  a  stranger  may  be  in  the  land,  the  tenant 
cannot  deny  the  title  of  the  former,  nor  affirm  that  of  the 
latter,  in  his  defence  to  the  landlord's  action  for  the  land. 
The  same  principle'  applies  to  the  rtliition  c>f  vendor  and  ven- 


234  Legal    Aphorisms. 

dee.  The  latter  is  estopped  from  denying  the  title  of  the 
former  in  an  action  at  law  to  recover  possession  of  the  snb- 
ject  of  the  sale.  Two  persons  may  each  have  a  right  to  re- 
cover possession  of  the  same  land.  The  lessor  always  has  a 
right  to  recover  it  of  his  lessee,  at  the  end  of  the  term,  even 
though  the  lessor  has  not  a  shadow  of  title.  But  that  does  not 
affect  the  right  of  the  real  owner  to  recover  it.  If  the  real 
owner  recovers  it  of  the  lessee,  before  the  lessor  does,  that  re- 
covery, of  course,  discharges  the  lessee  from  the  lessor's  right 
of  action.  23  Gratt.  360.  The  principle  is,  that  to  maintain 
ejectment  or  unlawful  detainer  of  land,  the  plaintiff  must 
have  the  legal  title  to  the  land.  Where  the  relation  of  land- 
lord and  tenant,  or  vendor  and  vendee  exists  between  the 
parties,  the  defendant  is  estopped  from  denying  the  plaintiff's 
title,  which  stands  in  the  stead  of  proof  of  such  title,  indeed 
conclusive  proof  of  it.  But  when  the  lessor  or  vendor,  after 
the  lease  or  contract  of  sale,  conveys  his  title  to  another,  he 
loses  the  benefit  of  the  estoppel,  or,  rather  transfers  it  to  his 
assignee.  In  the  language  of  Lord  Denman,  in  Downs  v. 
Cooper,  42  E.  C.  L.  663,  he  is  estopped  by  his  conveyance 
from  claiming  the  benefit  of  the  estoppel  arising  from  the 
lease  or  contract  of  sale.    Idem.  363. 

It  is  well  settled  that  in  actions  of  tort  against  several, 
one  of  the  defendants  may  be  convicted  by  the  jury,  while 
others  are  acquitted.  26  Gratt  431;  91  Va.  560;  2  Tuck. 
Com  92.  And  Mr.  M.  P.  Burks,  in  his  abstract  of  Lectures 
on  Conveyancing,  page  1,  says:  Adverse  possession  for 
The  statutory  period  confers  title  superior  to  any  paper 
Lectures  on  Conveyancing,  page  1,  says:  Adverse  possession 
for  the  statutory  period  confers  title  superior  to  any  paper 


LE(iAI.     AlMlOKISMS.  235 

title.  It  not  only  dciirivis  I  he  former  owner  of  his  remedy, 
but  passes  his  tillc  1<J  the  oectipant,  and  the  latter  may  main- 
tain a  hill  in  eqnity  against  the  former  to  remove  the  clond 
on  the  title  created  by  the  hitter's  recorded  deed.  Sharon  v. 
Tncker,  144  U.  S.  544 ;  81  Va.  B68. 

Torts. 

Tkespass.    See  Trespass  on  the  Case. 

Proof  of  an  actual  and  exclusive  possession  by  the  plain- 
tiff, even  if  it  be  by  wrong,  is  sufficient  to  support  the  action 
of  trespass  against  a  mere  stranger  or  wrong-doer,  who  has 
neither  title  to  the  possession  himself  nor  authority  from  the 
leeal  owner.    12  Graft.  471. 

At  common  law,  in  trespass  quare  clausum  fregit,  several 
rules  were  well  settled :  First,  if  a  single  trespass  upon  a  sin- 
ele  dav  was  relied  on,  a  time  must  be  alleged,  but  need  not 
be  proved.  Second,  in  order  to  enable  the  plaintiff  to  prove 
trespasses  on  more  than  one  day,  it  was  necessary,  if  the  tres- 
pass was  in  its  nature  capable  of  continuance  (as  where  the 
cattle  of  the  defendant  trampled  and  spoilt  the  gTass  of  the 
plaintiff  for  several  days)  to  allege  that  it  was  continued 
from  the  day  named  to  another  day — which  was  called  alleg- 
ing trespass  with  a  continuendo ;  or  if  the  trespasses  were  of 
a  kind  which,  when  once  done,  were  completed,  and  could  not 
be  continued  (as  in  the  case  of  cutting  down  trees)  to  allege 
that  the  defendant  committed  them  on  divers  days  and  times, 
d'iversis  diehus  et  vicihus;  and  unless  the  declaration  in  one 
of  these  forms,  showed  the  intention  of  the  pleader  to  rely 
u^xtn  more  than  a  single  trespass,  no  more  could  he  given  in 
evidence.    Third,  if  a  trespass  was  alleged  to  have  been  com- 


236  Legal    Aphorisms. 

initted  on  one  day,  and  thence,  either  continuously,  or  on 
divers  days  and  times,  to  another  day,  the  plaintiff,  if  he 
relied  on  a  single  trespass  only,  was  not  confined  to  any  par- 
ticular day,  and  might  prove  it  to  have  been  done  even  before 
the  first  day  alleged;  but  he  was  not  permitted  to  give  evi- 
dence both  of  a  trespass  within  the  time  alleged,  and  of  a 
trespass  at  another  time.  Bac.  Abr.  Trespass ;  K.  Bull.  ^N^.  P. 
86;  125  Mass.  533. 

Continuing  trespass  gives  to  the  owner,  separate,  succes- 
sive causes  of  action,  as  the  injuries  are  perpetrated,  in  each 
of  which  the  damages  recoverable  are  those  sustained  up  to 
the  time  of  its  commencement.  12S  :N'.  Y.  436 ;  26  Am.  St. 
K.  486 ;  11  K  Y.  App.  Div.  120 ;  28  A.  &  E.  Ency.  of  Law, 
(2d  Ed.)  595. 

When  A.  wrongfully  takes  the  property  of  B.  and  sells  it, 
B.  may  bring  trespass,  trover,  detinue,  or  assumpsit  for 
money  had  and  received,  against  A.  at  his  election ;  but, 
having  elected  one  of  these  forms  of  action,  and  prosecuted  it 
to  judgment,  he  cannot  then  abandon  it  and  bring  another. 
Trespass  comprehends  the  whole  injury,  as  well  the  wrongful 
taking  as  the  wrongful  detention  or  conversion,  and  the  value 
of  the  property,  unless  it  be  restored.    17  Gratt.  132. 

Trespassers. 
The  law  will  not  imply  a  promise  of  contribution  or  in- 
demnity as  between  co-trespassers,  on  account  of  the  illegality 
of  the  consideration,  and  for  the  same  reason  it  will  not  en- 
force an  express  promise  in  the  like  case.  8  T.  R.  186 ;  2 
Johns.  Chy.  Ft.  136;  31  Mass  176. 

Any  person  who  is  present  at  the  commission  of  a  trespass. 


Legal    Aphorisms.  237 

oncouraffine;  or  oxcitiii£r  tho  sarno  bv  Avor(l>^,  m'stnros.  looks  or 
sicms,  or  who  in  any  way  countciiancos  or  approves  the  same, 
is  in  law  doomed  to  be  an  aider  and  abettor,  and  liable  as 
principal ;  and  proof  that  a  person  is  present  at  the  commis- 
sion of  a  trespass  without  disapprovinf;  or  o})posing  it,  is 
evidence  from  which,  in  connection  with  other  circumstances, 
it  is  competent  for  the  jury  to  infer  that  he  assented  thereto, 
lent  to  it  his  countenance  and  approval  and  was  thereby  aid- 
ing and  abetting  the  same.  3  Greenl.  Ev.,  sec.  -il ;  Foster 
350;  1  Hale  P.  C.  438.  On  the  other  hand,  it  is  to  be  borne 
in  mind  that  mere  presence  at  the  commission  of  a  trespass  or 
other  wrong-fnl  act  does  not  render  a  person  liable  as  a  par- 
ticipator therein.  If  he  is  only  a  spectator,  innocent  of  any 
unlawful  intent,  and  does  not  act  to  countenance  or  approve 
those  who  are  actors,  he  is  not  to  be  held  liable  on  the  ground 
that  he  happened  to  be  a  looker  on  and  did  not  use  active  en- 
deavors to  prevent  the  commission  of  the  unlawful  act.  1 
Hale  P.  C.  431);  Koscoe  Crim.  Ev.  (2d  Ed.)  201  ;  83  Mass. 
98. 

Trespass  on  the  Case. 

It  is  not  necessarv,  to  maintain  an  action  on  the" case,  that 
there  should  be  any  moral  turpitude  in  the  act  complained  of. 
It  lies,  whenever  a  damaoe  is  occasionad  bv  a  wrong  done.  It 
is  founded  upon  the  mere  justice  and  conscience  of  the  case, 
and  is  in  the  nature  of  a  bill  in  equity.  Bird  v.  Kandall,  3 
Burr  1353;  24  Mass.  550. 

The  plaintiff,  in  his  declaration,  states  the  facts  out  of 
which  the  legal  obligation  arises,  the  obligation  itself,  the 
breach  of  it,  and  the  damage  resulting  from  that  breach.  1 
Chittv  PI.  155.     The  declaration  in  an  action  on  the  case 


238  Legal    Aphorisms. 

ought  not  ill  general  to  state  the  injury  to  have  been  com- 
mitted vi  et  armis,  nor  should  it  conclude  contra  paccm ;  in 
which  respects  it  principally  differs  from  the  declaration  in 
trespass.     1  Chitty  PI.  166. 

When  A.  wrongfully  takes  the  property  of  B.  and  sells  it, 
B.  may  bring  trespass  (and,  of  course,  case)  trover,  detinue 
or  assumpsit  for  money  had  and  received,  against  A.  at  his 
election ;  but  having  elected  one  of  these  forms  of  action,  and 
prosecuted  it  to  judg-ment,  he  cannot  then  abandon  it  and 
bring  another.  17  Gratt.  132.  When  the  wrong-doer  and  the 
injured  party  both  continue  alive,  the  practice  of  waiving  the 
tort  and  bringing  assumpsit  is  beneficial  to  the  defendant, 
because  a  jury  might  give  in  damages  for  a  tort  a  much 
greater  sum  than  could  be  allowed  in  the  other  form  of  action ; 
and  the  latter  admits  a  set-off  and  deductions  which  could  not 
be  allowed  in  an  action  founded  on  the  tort.  1  Taunt.  114; 
3  Rob.  Pr.  399. 

And  by  allowing  case  or  assumpsit  to  be  brought,  accord- 
ing as  the  neglect  of  duty  or  the  breach  of  promise  is  relied 
upon  as  the  injury,  a  multitude  of  actions  is  avoided;  and 
the  plaintiff,  according  as  the  convenience  of  his  case  re- 
quires, frames  his  principal  count  in  such  a  manner,  as  either 
to  join  a  count  in  trover  therewith,  if  he  have  another  cause 
of  action  other  than  the  action  of  assumpsit,  or  to  join  with 
the  assumpsit  the  common  counts,  if  he  have  another  cause 
of  action  to  which  they  are  applicable.  1  Chitty  PL  165; 
where  other  advantages  of  case  over  assumpsit  are  stated. 

Trover. 
To  sustain  the  action  of  trover,  the  plaintiff"  must  have  a 
general  or  special  property  in  the  subject  of  the  action,  and 


T>K(;.\i,    AriioKiSMS.  239 

a  right  of  possession  over  it  at  the  time  of    the    convci'.sion. 
Saiiiul.  on  PI.  869;  li>  (iratt.   KiO;  10  (Iratt.  :i;U.     The  gist 
of  the  action  is  the  convci'siini  ;  the  statulc  of  limitation-  be- 
gins to  rnn  against  this  action  fioni  the  time  of  the  act  of  con- 
version by  the  defendant.    G  Barb.  442 ;  1  Penrose  k^  Watts 
219;  1  Rob.  Pr.  504.     A  conversion  nuiv  he  proved  in  three 
ways — (1)   By  a  tortions  taking;   (2)  by  any  nse  or  appro- 
priation to  the  nse  of  the  person  in  possession,  indicating  a 
claim  of  right  in  opposition  to  the  rights  of  the  owner;  (3)  by 
a  refnsal  to  give  np  possession  to  the  owner  on  demand.    1 
Bailey  510;  3  Rob.  Pr.  462.   When  there  is  proof  of  the  first 
or  second  there  is  no  occasion  for  proof  of  the  third.     In  other 
words,  demand  and  refusal  being  only  evidence  of  conversion 
need  not  be  shown  when  there  is  sufficient  proof  of  actual  con- 
version.   Idem.  463 ;  1  Leigh  93  ;  26  W.  Va.  720 ;  nor  where 
defendant  came  unlawfully  into  possession.     10  Wend.  389. 
The  General  Issue  is  Not  Guilty. — Under  this  issue  the 
defendant  may  introduce  any  evidence  tending  to  rebut  the 
proofs  necessary  to  sustain  plaintiff's  action.    Stephen's  PI. 
(4  xVm.  Ed.)  2  App.  CXXXVIIL,  but  matters  in  confession 
and  avoidance,  as,  for  instance,  a  release  (or  a  former  recov- 
ery) should  be  pleaded  specially  (see  6  Rob.  Pr.  599,  notes) 
as  well  as  the  Statute  of  Limitations.  Stephen's  PI.  iihi  supra. 
The  measure  of  damages  is  the  full  value  of  the  property 
at  the  time  of  the  conversion,  and  interest  thereon  from  that 
time.    7  Cow.  300;  17  Pick.  1  :  21  Mass.  467.     In  an  action 
of  trover  for  the  conversion  of  a  chattel,  the  juiy  nuiy  give 
special  damages  beyond  the  original  value  of  the  chattel.     3 
Burr  1363;  2  Black  R.  902;  2  Johns.  V\i\.   116;  as  where 
there  is  any  uncertainty  as  to  the  tpuility  or  quantity  of  the 


240  Legal    Aphorisms. 

thing  demanded,  or  there  is  any  tort  accompanying  it  that 
may  enhance  the  damages  above  the  real  value  of  the  thing. 
Barnes  281  and  284. 

For  a  general  discussion  of  the  subject  of  Trover,  see  3 
Rob.  Pr.  441 ;  1  Chitty  PL  1G7 ;  4  Minor  542. 

Tkustees  and  Beneficiaries. 

]S'othing  more  should  be  required  of  a  trustee  than  that  he 
should  act  in  good  faith  and  with  the  same  prudence  and  dis- 
cretion that  a  prudent  man  is  accustomed  to  exercise  in  the 
management  of  his  own  affairs.    21  Graft.  200. 

Trustees  not  allowed  to  purchase  the  trust  subject,  says 
Lord  Eldon  in  ex  parte  James,  8  Yes.  345 :  This  doctrine  as 
to  purchases  by  trustees,  assignees  and  persons  having  a  confi- 
dential character,  rests  much  more  upon  general  principle 
than  upon  the  circumstances  of  any  particular  case.  Tt  rests 
upon  this,  that  the  purchase  is  not  permitted  on  any  case, 
however  honest  the  circtimstances ;  the  general  interests  of 
justice  requiring  it  to  be  destroyed  in  every  instance,  as  no 
court  is  equal  to  the  examination  and  ascertainment  of  the 
truth  in  much  the  greater  number  of  cases.  95  Va.  598;  97 
Ya.  234. 

When  a  court  of  equity  has  acquired  jurisdiction  over  a 
trustee  and  the  sul)ject  of  a  trust,  he  is  powerless  to  exer- 
cise his  functions  as  trustee  without  the  express  order  of  the 
court  allowing  him  to  proceed.  89  Ya.  323;  95  Ya.  200;  91 
Ya.  305  ;  and  it  would  seem,  also,  when  the  trustee  had  not 
been  made  a  party.    6  Call  363. 

If  a  certificate  of  stock  expressed  in  the  name  of  ^'A.  B., 
ti'ustee,"  is  by  him  pledged  as  security  for  his  own  debt,  the 
pledgee  is  by  the  term  of  the  certificate  put  on  inquiry  as  to 


Legal    Ai'iiorisms.  241 

the  character  and  limitations  of  the  trust  and  if  he  accepts 
the  pledge  without  inquiry  does  so  at  his  peril.  100  Mass. 
382  ;  but,  see  15  Wall  165.  A  conveyance  to  one  as  trustee  is 
sufficient  to  put  one  dealing-  with  the  property  on  inquiry. 
5  Otto.  571). 

It  is  a  general  rule  that  an  action  at  law  cannot  be  main- 
tained against  a  trustee  to  recover  money  due  from  him  in 
that  character.  Purdue  v.  Price,  10  ^[.  k  W.  457.  If,  how- 
ever, the  trustee  has  appropriated  a  certain  sum  as  payable  to 
the  cestui  que  trust,  as,  for  example,  by  the  settlement  of  an 
account  showing  a  balance  due  him,  or  otherwise  admits  that 
he  holds  it  to  be  paid  to  the  cestui  que  trust,  or  for  his  use, 
pn  action  at  law  for  money  had  and  received  will  lie,  because 
the  character  of  the  relation  between  the  parties  in  respect  to 
the  monev  is  chanoed.  The  trustee  no  longer  holds  the  monev 
as  trustee,  properly  so  called,  but  he  holds  it  as  a  receiver  for 
the  use  of  the  cestui  que  trust.    19  Gratt.  65 ;  2  Rob.  Pr.  453. 

Judicial  sales,  how  made,  when  title  held  by  trustee.  See 
Judicial  Sales. 

How  to  State  Account  of  a  Trustee  in  a  Deed  of  Trust. — 
It  is  a  general  rule  that  a  trustee  shall  have  a  reasonable 
allowance  for  his  risk,  trouble  and  expenses.  3  Call  538.  And 
a  usual  allowance  is  five  per  cent,  on  the  receipts.  See  4  H.  & 
3^r.  415.  But,  in  Beverleys  v.  :Miller,  6  Munf.  99,  under  the 
particular  circumstances  of  the  case,  it  was  determined  that 
no  commissions  ought  to  be  allowed  the  trustee. 

It  is  also  a  general  rule  that  a  trustee  shall  pay  interest  on 
so  much  of  the  money  received  by  him  under  the  deed  of 
trust,  as  is  not  paid  by  him  in  a  reasomible  time  after  collec- 
tion, to  the  i>ersons  entitled  to  it.   3  Call  538.    But  in  Bever- 


242  Legal    Apiioeisms. 

leys  V.  Miller,  under  the  particular  circumstances  of  the  case, 
it  was  determined  that  no  interest  should  be  charged  against 
the  trustee,  and  that  he  should  be  allowed  interest  on  the 
balance  due  him.   2  Eob.  (old)  Pr.  380. 

Teusts. 

I  think,  for  simplicity's  sake,  we  should  divide  trusts  into 
two  classes,  calling  one  direct  or  express  trusts  (that  is,  trusts 
springing  from  the  agreement  of  the  parties),  and  the  other 
constructive  or  implied  trusts  (that  is,  trusts  created  by 
equity  law).  Under  the  latter  subdivision  will  fall  all  trusts 
that  are  called  implied  trusts,  constructive  trusts,  trusts  aris- 
ing from  fraud  or  otherwise ;  in  short,  all  trusts  that  do  not 
spring  from  the  agTeement  of  the  parties.  Brannon,  J.,  in 
Currence  v.  Ward,  (W.  Va.),  27  S.  E.  330. 

Underbill  says :  A  declared  or  express  trust  means  a  trust 
created  by  words,  either  expressly  or  impliedly  evincing  a 
direct  intention  to  create  a  trust ;  and  a  constructive  trust  is 
not  created  by  any  words  either  expressly  or  impliedly  evinc- 
ing a  direct  intention  to  create  a  trust,  but  by  the  construction 
of  equity  in  order  to  satisfy  the  demands  of  justice.  See  27 
A.  &  E.  Ency.  Law;  3  Hill  Trustees,  55 ;  1  Perry  Trusts,  sec. 
73,  Idem. 

Unlawful  Detainer, 

There  is  a  material  difference  between  an  action  of  eject- 
ment and  an  action  of  forcible  or  unlawful  entry.  The  title 
or  right  of  possession  is  always  involved  in  the  trial  of  an 
action  of  ejectment.  The  plaintiff  cannot  recover  without 
showing  that  he  is  entitled  to  the  possession ;  and  the  defend- 
ant, without  having  any  right  to  the  possession  himself,  may 


Legal   Aphorisms.  243 

generally  prevent  a  recovery  by  the  plaintiff,  by  showing  an 
ontstandiiig  right  of  possession  in  another.  Tho  remedy  for 
a  forcible  or  unlawful  entry  was  designed  to  protect  the  actual 
possession,  whether  rightful  or  wrongful,  against  unlawful 
invasion,  and  to  afford  summary  redress  and  restitution.  The 
entry  of  the  owner  is  unlawful  if  forcible,  and  the  entry  of 
any  other  person  is  unlawful,  whether  forcible  or  not.  If  the 
defendant  enters  unlawfully,  the  plaintiff  is  entitled  to  re- 
cover, without  any  regard  to  the  question  of  his  right  of  pos- 
session. His  actual  possession,  of  itself,  gives  him  a  right  of 
possession  against  any  person  not  having  a  right  of  entry.  "^  * 
Any  possession  is  a  legal  possession  against  a  wrong-doer.  12 
Gratt.  470.  The  principle  is,  that  to  maintain  ejectment  or 
unlaAvful  detainer  for  land,  the  plaintiff  must  have  the  legal 
title  to  the  possession  of -the  land.  23  Gratt.  3G3.  And  in  an 
action  of  unlawful  detainer  the  plaintiff  must  recover  upon 
the  strength  of  his  title  or  right  of  possession.  27  Gratt.  606. 
And  when  a  tenant  is  put  in  possession  under  a  contract  of 
purchase  he  cannot  be  ousted  by  unlawful  detainer  before  his 
lawful  possession  is  determined  by  demand  of  possession  or 
otherwise.  18  Gratt.  505.  Xo  disabilities  avail  to  prolong 
the  time  of  brinffins  the  action.     4  !Minor  620. 

Value  of  Property. 
The  value  of  property  as  the  means  of  paying  debts,  is 
made  up  of  several  elements — to  wit. :  the  nature,  amount  and 
certainty  of  the  subject  itself,  and  the  time  at  which  it  may 
be  made  available.     14  Gratt.  55 ;  see  99  Va.  332. 

Variance.   See  Surplusage. 
I  understand  a  variance  to  be  an  erroneous  description  of 
the  instrument  referred  to,  so  that  it  does  not  appear  to  be  the 


244  Legal    Aphorisms. 

same  when  produced  in  evidence,  either  on  over  or  at  the 
trial.  Marshall,  C.  J.,  1  Brock  180.  But  a  mere  literal 
variance  between  a  contract  as  set  forth  in  pleading  and  the 
one  produced  in  evidence  is  immaterial.  3  Rob.  Pr.  560. 
While  it  is  not  necessary  to  prove  that  a  note  or  bill  payable 
at  a  particular  place  was  not  then  and  their  paid,  it  is  essen- 
tial that  the  place  of  payment  fixed  by  the  note  should  be  set 
out  in  the  declaration ;  and  if  this  is  not  done,  and  the  admis- 
sion of  the  note  in  evidence  is  objected  to,  the  court  shomd 
exclude  it  on  account  of  variance  between  the  note  offered  in 
evidence  and  that  described  in  the  declaration.  27  W.  Va. 
436 ;  Covington  v.  Comstock,  14  Pet.  43 ;  Hogg  s  PI.  &  F.  94. 
There  is  no  variance  between  a  writ  or  summons  against  a 
party  generally,  i.  c,  in  his  individual  name  merely  and  a 
declaration  or  bill  against  him  as  administrator.     See  writ. 

Vendor  and  Vendee. 

The  same  rule  applies  between  vendor  and  vendee  as  to 
denying  vendor's  title  as  apply  between  landlord  and  tenant. 
23  Gratt.  360-1. 

The  proper  time  for  a  purchaser  to  inquire  into  a  title 
and  satisfy  himself  about  it,  is  while  the  contract  of  sale  re- 
mains executory.  A  purchaser  at  a  judicial  sale  ought  to 
make  such  inquiry  before  the  confirmation  of  the  sale  by  the 
court,  and  a  purchaser  at  a  private  sale,  ought  to  make  it  bo- 
fore  he  receives  possession  of  the  property  and  a  deed  from 
the  vendor.  In  neither  case  will  the  purchaser  be  compelled 
to  accept  a  bad  or  a  doubtful  title,  unless  he  has  agreed  to  do 
so.  But  having  accepted  the  title,  and  received  the  deed,  he 
will  generally  have  to  look  only  to  the  covenants  contained  in 


Legal    Aimiorisms.  245 

the  deed  for  his  indeiiiiiity  and  jirotection  against  any  defects 
which  may  Ijc  in  the  title.    18  Gratt.  G60. 

When  and  as  soon  as  a  valid  contract  is  made  for  the  sale 
of  land,  equity,  which  looks  upon  things  agreed  to  be  done  as 
actually  performed,  considers  and  treats  the  vendor  as  a  trus- 
tee for  the  purchaser  of  the  estate  sold,  and  the  purchaser  as  a 
trustee  of  the  purchase  money  for  the  vendor.  The  purchaser 
is  deemed  and  treated  as  the  equitable  owner  of  the  land ;  and 
subject  to  the  lien  for  the  unpaid  purchase  money,  the  title 
being  retained,  the  equitable  estate  of  the  purchaser  is  alien- 
able, devisable  and  descendible  in  like  manner  as  real  estate 
held  by  legal  title.     75  Va.  346. 

That  a  promise  to  pay  a  debt  due  from  the  promisee,  even 
where  it  has  not  been  paid  by  him,  is  one  upon  which  an 
action  may  be  maintained  and  damages  recovered  to  the 
amount  of  such  debt,  is  held  by  many  authorities.  119  ^Mass. 
507.  When  the  undertaking  is  to  perform  a  collateral  act,  the 
party  may  perform  it  any  time  during  his  life,  unless  hast- 
ened by  request.  But,  wherever  the  stipulation  is  to  pay 
money  even  to  a  third  person,  and  no  time  is  specified,  it 
obliges  the  party  to  pay  immediately;  and  the  failure  to  do 
so  is  a  breach  of  his  contract,  for  which  an  action  will  lie,  and 
it  is  no  answer  to  such  action  to  say  that  the  plaintiff  has  not 
been  injured.  It  would  be  against  all  justice  to  permit  the 
covenanter  to  say  that  his  covenantee  shall  subject  himself  to 
the  inconvenience  and  embarrassment  of  first  paying  the  debt 
before  the  covenanter  should  be  called  on  to  pay.  The  latter 
suffers  no  prejudice  in  being  required  to  pay  the  whole 
amount.  As  he  failed  to  pay  the  original  creditor,  he  should 
pay  his  covenanter.     What  the  latter  may  do  with  the  money 


246  Legal   Aphoeisms. 

does  not  concern  him.  The  courts,  therefore,  hold  that  the 
covenanter  need  not  show  that  he  had  paid  the  debt,  or  that 
he  had  been  injured  otherwise  by  the  failure  of  the  covenanter 
to  comply  with  his  engagement.  All  that  is  necessary  for 
him  to  show  in  such  case  is,  that  the  debt  due  by  him  to  the 
third  person  was  not  paid  at  the  appointed  time ;  or,  if  no 
time  was  specified,  that  it  had  not  been  paid  at  the  commence- 
ment of  the  suit.  And,  upon  establishing  this  fact,  the  coven- 
antee is  entitled  to  a  recovery  of  damages  equal  to  the  whole 
amount  of  the  debt,  citing  authorities.    21  Gratt.  105. 

When  vendee  can  and  cannot  defend  against  an  action  for 
the  purchase  money.    53  S.  E.  (W.  Va.)  902. 

When  purchaser  assumes  payment  of  a  vendor's  lien.  25 
Gratt.  454;  9S  Va.  530.  Of  a  judgment,  75  Va.  758.  When 
purchaser  assumes  payment  of  an  incumbrance,  10  Gratt. 
164;  33  Gratt.  582;  94  Va.  236;  96  Va.  608;  94  Va.  370; 
Idem.  377  ;  76  Va.  392  ;  85  Va.779  ;  97  Va.  462  ;  75  Va.773  ; 
101  Va.  664.  When  purchaser  retains  part  of  the  purchase 
money  for  the  purpose  of  paying  off  an  incumbrance.  13 
Gratt.  195;  94  Va.  751;  2  S.  E.  337.  When  purchaser  buys 
subject  to  the  lien  of  an  incumbrance  without  assuming  its 
payment.  94  Va.  751 ;  2  S.  E.  337.  See  3  Rob.  Pr.  438.  And 
purchaser  cannot  set  up  the  defence  of  usury  whether  he  as- 
sumes or  does  not  assume  payment  of  the  incumbrance.  33  S. 
E.  283  ;  93  Va.  498  ;  21  W.  Va.  113  ;  5  Leigh  478,  491,  493  ; 
99  Va.  140 ;  10  Wheat.  367.  The  contract  of  the  vendee  is  an 
implied  one  and  the  limitation  against  an  action  for  the  pur- 
chase money  is  three  years.    101  Va.  664. 

Vendor^s  Lien. 
Fully  discussed    and    principles    applicable  thereto.    33 
Gratt.  192  et  seq. ;  22  Gratt.  163.     When  no  conveyance  the 


Legal   Aphorisms.  247 

law  is  as  it  was  before  the  statute.    33  Gratt.  163 ;  22  Gratt. 
163,  164. 

Proper  decree  enforcing  a  vendor's  lien.  2  Va.  L.  Reg. 
369. 

Void  A^■u  Voidable  Acts. 

The  distinction  between  void  and  voidable  acts  seems  to 
be  this :  That  everj  act  malum  in  se,  or  which  is  against  pub- 
lic policy  is  to  be  held  void  in  the  strictest  sense,  a  mere  nul- 
lity; but  if  an  act  is  prejudicial  only  to  one  individual,  then 
it  is  to  be  considered  as  voidable  only  by  such  individual.  44 
Mass.   448. 

Waiver. 

A  waiver  is  the  intentional  relinquishment  of  a  known 
right,  and  there  must  be  both  knowledge  of  the  existence  of  a 
known  right  and  an  intention  to  relinquish  it.  Hoxie, 
Home  Ins.  Co.,  32  Conn.  21 ;  78  Va.  7. 

Warranty. 
A  warranty  is  an  express  or  implied  statement  of  some- 
thing which  the  party  undertakes  shall  be  part  of  a  contract ; 
and  though  part  of  the  contract,  yet  collateral  to  the  express 
object  of  it.  15  Gratt.  584.  But  a  warranty  is  a  separate,  in- 
dependent, collateral  stipulation,  on  the  part  of  the  vendor, 
with  the  vendee,  for  which  the  sale  is  the  consideration,  for 
the  existence  or  truth  of  some  fact,  relating  to  the  thing  sold. 
It  is  not  strictly  a  condition,  for  it  neither  susjx>nds  nor  de- 
feats the  completion  of  the  sale,  the  vesting  of  the  thing  sold 
in  the  vendee,  nor  the  right  to  the  purchase  money  in  the 
vendor.  And,  notwithstanding  such  warranty,  or  any  breach 
of  it,  the  vendee  may  hold  the  goods,  and  have  remedy  for  his 


248  Legal   Aphoeisms. 

damages  by  action.  55  Mass.  273.  Perhaps,  as  Lord  Abinger 
observes,  the  use  of  the  word  warranty  in  many  cases  between 
vendor  and  vendee,  may  be  unfortunate ;  the  question,  as  he 
remarks,  is  often  simply  this,  "whether  there  has  been  a  non- 
compliance with  a  contract  which  a  party  has  engaged  to  fill." 
4  M.  &  W.  405 ;  2  Rob.  Pr.  425. 

If,  upon  a  sale  with  a  warranty,  or  if,  by  the  special  terms 
of  the  contract,  the  vendee  is  at  liberty  to  return  the  article 
sold,  an  offer  to  return  it  is  equivalent  to  an  offer  accepted  by 
the  vendor,  and,  in  that  case,  the  contract  is  rescinded  and  at 
an  end,  which  is  a  sufficient  defence  to  an  action  brought  by 
the  vendor  for  the  purchase  money,  or  to  enable  the  vendee  to 
maintain  an  action  for  money  had  and  received,  in  case  the 
purchase  money  has  been  paid.  The  consequences  are  the 
same  where  the  sale  is  absolute,  and  the  vendor  afterwards 
consents,  unconditionally,  to  take  back  the  property ;  because, 
in  both,  the  contract  is  rescinded  by  the  agreement  of  the 
parties,  and  the 'vendee  is  well  entitled  to  retain  the  purchase 
money  in  the  one  case,  or  to  recover  it  back  in  the  other.  But 
if  the  sale  be  absolute,  and  there  be  no  subsequent  agreement 
or  consent  of  the  vendor  to  take  back  the  article,  the  contract 
remains  open,  and  the  vendee  is  put  to  his  action  upon  the 
warranty,  unless  it  be  proved  that  the  vendor  knew  of  the  un- 
soundness of  the  article,  and  the  vendee  tendered  a  return  of 
it  within  a  reasonable  time.    12  Wheat.  192  ;  2  Rob.  Pr.  465. 

Declaration  by  an  administrator, — counts  in  action  for 
breach  of  warranty  in  the  sale  of  a  horse. 

1.   That  whereas,  on  the  20th  day  of ,  in  the 

year ,  at  P.  &c.,  in  consideration,  that  the  said  A.  B., 

in  his  lifetime,  at  the  special  instance  and  request  of  the  said 


Legal    Aphorisms.  249 

C.  D.,  would  buy  of  the  said  C.  D.,  a  certain  gelding  of  him 
the  said  C.  D.,  at  and  for  a  large  price  or  sum  of  money — to 

wit :  for  the  price  of  $ of  lawful  money,  &c.,  to  be  paid 

by  the  said  A.  B.,  in  his  lifetime,  for  the  same,  to  the  said  C. 
D.,  he  the  said  C.  D.  then  and  there  undertook  and  faithfully 
promised  the  said  A.  B.,  in  his  lifetime,  that  the  said  gelding 
was  tame  and  gentle  in  harness,  and  was  no  more  than  seven 
years  of  age,  the  spring  then  next  preceding;  and  the  plain- 
tiff in  fact  says  that  he,  the  said  A.  B.,  in  his  lifetime,  con- 
fiding in  the  said  promise  and  undertaking  of  him,  the  said 
C  D.,  so  by  him  made  as  aforesaid,  afterwards — ^to  wit.,  on 
the  day  and  year  aforesaid,  at  the  place  aforesaid  and  within 
the  jurisdiction  aforesaid,  at  the  special  instance  and  request 
of  him  the  said  C.  D.  did  buy  of  him,  the  said  C.  D.,  the  said 

gelding  at  and  for  the  price  of  $ ;   and  then  and  there 

paid  him  the  said  sum  of  money  for  the  same.  Yet  the  said 
C.  D.,  not  regarding  his  said  promise  and  undertaking,  so  by 
him  made  as  aforesaid,  but  contriving  and  fraudulently  in- 
tending to  injure  the  said  A.  B.,  in  his  lifetime,  in  this  be- 
half, did  not  regard  his  said  promise  and  undertaking,  so  by 
him  made  as  aforesaid,  but  craftily  and  subtly  deceived  the 
said  A.  B.,  in  his  lifetime,  in  this:  That  the  said  gelding,  at 
the  time  of  making  the  said  promise  and  undertaking  of  the 
said  C.  D.,  was  not  tame  and  gentle  in  harness,  and  was  older 
than  seven  years  the  then  last  spring — to  wit.,  was,  and  still 
is  fractious,  and  unmanageable  in  harness,  and  was,  the  then 
last  spring,  ten  years  old,  at  least — to  wit.,  at  the  place  within 
the  jurisdiction  aforesaid,  whereby  the  said  gelding,  then  and 
there  became,  was  and  still  is  of  no  value. 

2.  And  for  that  whereas  also,  afterwards — to  wit,  on  the 


250  Legal   Aphorisms. 

same  day  and  year  aforesaid,  at  the  place,  &c.,  in  considera- 
tion that  the  said  A.  B.,  in  his  lifetime,  would  buy  of  the  said 
C.  D.  other  a  certain  gelding,  at  and  for  a  large  price,  or 

sum  of  money — to  wit,,  the  price  of  $ of  lawful  money 

of  the  United  States  of  America,  to  be  paid  by  the  said  A.  B., 
in  his  lifetime,  for  the  same,  to  the  said  C.  D.,  he  the  said  C. 
D.,  then  and  there  undertook,  and  faithfully  promised  the 
said  A.  B.  that  the  said  last  mentioned  gelding  was  no  more 
than  eight  years  old  the  then  last  spring,  &c.,  (as  in  first 
count). 

3.  (The  third  count  was  for  money  paid,  money  lent,  and 
money  had  and  received,  &c.)  Nevertheless,  the  said  C.  D., 
his  promises  and  assumptions  aforesaid,  in  form  aforesaid 
made,  not  in  the  least  regarding,  the  said  last  mentioned  sum 
of  money  (the  said  several  sums  of  money  in  the  several 
counts  in  this  declaration  set  forth  and  every  part  thereof) 
(5  Munf.  196)  to  the  said  A.  B.,  in  his  lifetime,  or  to  the  said 
plaintiff  since  his  death,  hath  not  paid  (though  often  re- 
quested, &c.,  by  the  said  A.  B.  in  his  lifetime,  and  the  said 
plaintiff,  since  his  death),  but  the  same  to  the  said  A.  B.,  in 
his  lifetime,  to  pay,  the  said  C.  D.,  always  refused,  and  the 
same  to  the  said  plaintiff,  since  his  death  hath  hitherto  wholly 
refused,  and  still  doth  refuse,  to  the  plaintiff's  damage  of 

$ ,  and  therefore  he  brings  suit,  etc.    G  Johns.  K.  138. 

Another  form  in  4  Minor  1673. 

Wills. 

Probate  Of. — One  witness  may  be  examined  and  probate 
continued  to  secure  the  attendance  of  the  other  witness. 

Witness. 
Form  of  Exception  to  witness  for  Incompetency. — In  the 


Legal   Aphorisms.  251 

case  of  St  at  ham  (S:  als.  v.  Ferguson's  Adm'r  &  Als.  (25  Gratt. 
28),  when  the  plaintiff  was  introduced  as  a  witness  in  the 
case  below,  and  before  her  examination  was. commenced,  an 
exception  was  taken  and  written  at  the  head  of  the  deposition 
in  these  words:  "Defendants,  by  counsel,  except  to  the  taking 
of  the  deiKDsition  of ,  the  plain- 
tiff in  this  cause,  and  to  the  reading  of  the  same,  on  the 
ground  that  she  is  incompetent  to  testify  on  her  own  behalf 
(being  a  i)arty  to  the  contract)"',  the  validity  of  which  is  in 
controversy  in  this  suit.  It  does  not  appear  from  the  report 
of  the  case  whether  she  was  cross-examined  by  the  defendants 
or  not.  But  even  if  she  was,  any  inference  from  that  fact 
to  waive  objection  to  her  competency  as  a  witness  was  conclu- 
sively repelled  by  the  express  exception  to  such  competency 
wn-itten  at  the  head  of  her  deposition  as  aforesaid.  29  Gratt. 
750. 

The  effect  of  not  examining  a  witness,  and  the  right  of 
counsel  to  comment  thereon  to  the  jury.  U.  S.  v.  Budd,  144 
r.  S.  1G5;  Idem.  171;  16  S.  E.  R.  602;  134  Mass.  502 
(brief  of  counsel).  32  Gratt.  649.  (See  argument  of  coun- 
sel). A  trial,  either  in  civil  or  criminal  cases,  the  omitting  to 
produce  evidence  in  elucidation,  which  is  in  the  power  of  the 
party,  or  within  his  peculiar  knowledge,  shall  be  holden  to 
turn  every  doubt  against  him.   1  Stark.  Ev.  34. 

Writ. 
Where  a  party  is  charged  in  a  bill  or  declaratiou  in  the 
capacity  in  which    he    is    liable,  as    executor,  &:c.,  it  is  not 
ground  of  demurrer  that  the  subpoena  was  issued  to  him  gen- 

*Should  be  amendcJ  so  as  to  show  why  in  the  given  case,  the  witness  is 
incompetent. 


252  Legal    Aphorisms. 

erally,  not  stating  the  capacity  in  which  he  is  sued.  3  Green 
Chy.  73;  1  Dan.  Chy.  (G  Ain.  Ed.)  441,  note;  G  Moore  G6 
S.  C;  3  B.  &  B.  4;  1  Chitty  PL  (Am.  Ed.)  284.  In  the 
last  mentioned  case,  Lord  C.  J.  Dallas  says:  ''The  only  ob- 
ject of  the  process  is  to  compel  the  party  against  whom  it  is 
issued  to  appear,  and  when  he  is  in  court,  the  plaintiff  in  his 
declaration  discloses  the  form  and  cause  of  action  for  which 
he  sues.  On  this  ground,  therefore,  it  appears  to  me  there  is 
no  foundation  for  the  present  application."  But  in  ISToy's 
Maxims,  page  12,  it  is  said:  ''As  if  a  man  warned  to  answer 
a  matter  in  a  writ,  there  he  shall  not  answer  to  any  other 
matter  than  is  contained  in  the  writ,  for  that  was  the  end  of 
his  coming.      See  Coke  Lit.  1^  3." 

Where  an  instrument  is  attested  by  a  subscribing  witness, 
the  law  requires  him  to  be  called  to  prove  its  execution ;  the 
parties  having  agreed  that  he  shall  be  their  witness  of  the 
fact ;  and  the  presumption  being  that  he  has  a  better  knowl- 
edge than  any  other  of  the  attending  circumstances ;  and  the 
omission  to  call  him  cannot  be  supplied  by  proof  of  an 
acknowledg-ment  or  admission  of  the  party  against  whom  the 
instrument  is  adduced,  or  that  the  signature  of  the  party  is  in 
his  handwriting.  7  Gratt.  395.  In  the  ordinary  course  of 
legal  proceedings,  instruments  under  seal,  purporting  to  be 
executed  in  the  presence  of  a  witness,  must  be  proved  by  the 
testimony  of  the  subscribing  witness,  or  his  absence  suffi- 
ciently accounted  for.  Where  he  is  dead,  or  cannot  be  found, 
or  is  without  the  jurisdiction,  or  is  otherwise  incapable  of 
being  produced,  the  next  best*  secondary  evidence  is  the  proof 

*In  secondary  evidence  there  are  no  degrees —  that  is,  no  pre- 
cedence or  superiority  in  point  of  admissibility.(  i  Phill.  Ev.  368), 
unless,  perhaps,  in  the  case  of  records. 


Legal   Aphorisms.  253 

of  his  handwriting;  and  that,  when  proved,  affords  prima 
facie  evidence  of  a  due  execution  of  the  instrument,  for  it  is 
presumed  that  he  would  not  have  subscribed  his  name  to  a 
false  attestation.  If  upon  due  search  and  inquiry  no  one  can 
be  found  who  can  prove  his  handwritinp;,  there  is  no  doubt 
that  resort  may  be  had  to  proof  of  the  handwritinfj  of  the 
party  who  executed  the  instrument ;  indeed  such  proof  may 
always  be  produced  as  corroborative  evidence  of  its  due  and 
valid  execution,  though  it  is  not,  except  under  the  limitations 
above  suggested,  primary  evidence.  5  Peters  344.  But  after 
the  lajise  of,  say,  twenty-six  years,  the  fair  presumption  is 
that  such  evidence  as  is  set  out  in  the  foregoing,  has  perished, 
if  it  ever  existed ;  and,  if  so,  then  the  exclusion  of  other  evi- 
dence, whether  direct  or  circumstantial,  to  prove  the  execu- 
tion of  the  instrument,  has,  to  my  mind,  no  color  of  reason. 
Moncure,  J.,  in  7  Gratt.  398.  The  plaintiff  having  proved 
the  handwritino;  of  the  witness,  the  defendant  mav  introduce 
the  testimony  of  witnesses  to  prove  that  the  name  of  the  prin- 
cipal to  the  instrument  is  not  in  his  handwriting.  31  Gratt. 
323. 

It  is  an  established  rule,  that  where  there  are  duplicate 
originals,  all  the  originals  must  be  accounted  for,  before 
secondary  evidence  can  be  given  of  any  one  of  them.  1  Phil. 
Ev.  586. 

When  a  written  contract  is  to  be  proved,  not  by  itself,  but 
by  parol  testimony,  no  vagiie,  uncertain  recollection  concern- 
ing its  stipulations  ought  to  supply  the  place  of  the  written 
instrument  itself.  The  substance  of  the  agreement  ought  to 
be  proved  satisfactorily;  and  if  that  cannot  be  done,  the 
party  is  in  the  condition  of  every  other  suitor  in  court,  who 
makes  a  claim  which  he  cannot  supjwrt.     1  Peters  GOO. 


254  Legal   Aphorisms. 

In  practice,  when  there  is  no  ground  of  suspicion  that  the 
paper  is  intentionally  suppressed,  not  any  discernible  motive 
for  deception,  the  courts  are  extremely  liberal  in  regard  to 
secondary  evidence.     The  rule  must  be  so  applied  as  to  pro- 
mote the  ends  of  justice  and  guard  against  fraud  and  impo- 
sition.    If  the  circumstances  justify  a  well-grounded  belief 
that  the  original  paper  is  kept  back  by  design,  no  secondary 
evidence  ought  to  be  admitted;    but  where  no  such  suspicion 
attaches,  and  the  paper  is  of  that  description  that  no  doubt 
can  arise  as  to  the  proof  of  its  contents,  there  can  be  no  danger 
in  admitting  secondary  evidence.     This  is  the  rule  laid  down 
in  Cowen  &  Hill's  Notes  and  approved  by  this  court  in  Cor- 
bett  V.  Xutt.  18  Gratt.  624-635 ;  31  Gratt.  321. 

Where  Interpretation  May  Be  Left  to  the  Jury. — It  is 
certainly  true,  as  a  general  rule,  that  the  interpretation  ot 
written  instruments  properly  belongs  to  the  court  and  not  to 
the  jury.  But  there  certainly  are  cases,  in  which,  from  the 
different  senses  of  the  words  used,  or  their  obscure  and  inde- 
terminate reference  to  unexplained  circumstances,  the  true 
interpretation  of  the  language  may  be  left  to  the  consideration 
of  the  jury  for  the  purpose  of  carrying  into  eifeet  the  real 
intention  of  the  parties.  14  Peters  493.  But  bear  in  mind 
that  interpretation  is  the  applying  the  correct  significance  to 
the  words  used  and  differs  from  construction  which  means  the 
ascertaining  of  intention  of  the  parties,  gathered  from  the 
terms  of  the  writing  after  ascertaining  the  meaning  in  which 
the  words  were  used. 

Where  the  true  import  and  meaning  of  a  written  instru- 
ment is  doubtful,  and  the  intention  of  the  parties  cannot  be 
determined  from  its  language,  the  right  doctrine  is,  tliat  it 


Legal   Aphorisms.  255 

shall  be  construed  most  strongly  against  the  person  using  the 
doubtful  language,  and  in  favor  of  him  who  has  been  misled 
and  advanced  his  money  upon  it.  12  East.  227;  2  How.  426, 
450;  6  Bing.  244;  4  Hill  200;  Story  on  Con't,  sees.  258,  2G0, 
261;  63  Mass.  56. 

In  the  absence  of  fraud,  accident  or  mistake,  a  contempor- 
aneous agreement  not  embodied  in  the  written  contract  cannot 
be  added  to  its  terms,  but  it  seems  that  a  written  contract, 
complete  on  its  face,  may  be  shown  by  a  contemporaneous 
parol  agreement  to  have  been  delivered  on  condition.  5  Va.  L. 
Keg.  316. 

One  losing  a  written  instrument  should  immediately  give 
notice  of  his  loss  to  the  public,  in  such  manner  as  is  most 
likely  to  prevent  innocent  parties  from  taking  it.  13  E.  C. 
L.  44.  When,  after  such  notice  has  been  given,  a  person  has 
taken  paper  from  a  stranger  without  making  such  inquiries 
as  prudence  would  suggest  to  any  one  acquainted  with  the 
business  of  the  world,  should  be  made,  the  owner  of  the  paper 
has  recovered  its  value  from  him.  Although  the  loss  has  not 
been  duly  advertised,  yet  if  the  paper  was  received  under  cir- 
cumstances inducing  a  belief  that  the  receiver  knew  that  the 
holder  had  become  possessed  of  it  dishonestly,  the  true  owner 
recovered  its  value  from  the  receiver.  The  owner's  negligence 
wa.<  deemed  no  excuse  for  the  receiver's  dishonesty.  13  E.  C. 
L.  25 ;  2  Rob.  Pr.  507. 

Finis. 


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